Siman 90

It was an enactment of the sages that the one who was robbed swears with a sacred object like a Torah oath and takes from the robber as much as he says he robbed from him, and it is a penalty that the sages penalized the robber. Therefore, if the robber died, they did not penalize his son after him to pay from his father's property as much as the one who was robbed says. This is not similar to a hired worker in siman 89, where we explained that even if the homeowner died, his son is obligated to pay the hired worker based on his oath, for regarding a hired worker it is not by reason of a penalty, but rather because of his livelihood, as is written there [Shach]. And it is not specifically a literal robber, but even when one enters the house of his fellow to seize a mashkon for his debt and went against the law of the Torah—for example, the borrower did not give him permission to go and take mashkonot himself, and also the beit din did not permit him to take them himself according to the laws that will be explained in siman 97, for sometimes the beit din gives permission, such as when he owes him for the labor of his body or his animal—and the Torah prohibited this, as it is written: "You shall not enter into his house to fetch his pledge," this one's law is also like a robber.

And specifically when witnesses saw him enter into the house in the capacity of a robber or to take a mashkon without permission, and he had nothing under his wings, and when he exited they saw that he had vessels or objects under his wings and they do not know what they are; or even if they saw them openly but did not scrutinize them, or that some of them know and some of them do not know, and the homeowner claims, "Give me such and such that you robbed from me," and he answers him, "It is so that I entered to take, but I took nothing because I turned back from my intention, and the vessels I carried are mine"; and whether he answers, "I never entered your house to take anything from you," and denies the witnesses, or whether he answers, "I only took these vessels and no more," and the homeowner says, "You took others as well"—in all these cases the homeowner swears with a sacred object and takes all that he claims. And the homeowner requires an oath even when the robber denies the witnesses [Urim VeTumim], but the vessels that the witnesses saw, he takes without an oath [it appears to me]. And when witnesses testify regarding a portion of the vessels, we do not say that even with an oath he should not take because if there were more the witnesses would have seen, for since they do not testify clearly that he did not take more, the homeowner takes with an oath [Tur]. And likewise if the robber claims, "I took for my debt and you gave me permission that I should take them," or if he claimed that he seized them without his permission, the law is also thus: that the homeowner swears and takes. And regarding the matter of the debt, let the law pierce through them; and if it is clarified that he owes him a certain sum, the homeowner shall swear regarding such and such vessels, and from this the debt shall be deducted, and if they are not sufficient, he shall pay from his pocket [it appears to me].

And all this is specifically when they saw now some of the vessels that the owner is claiming in the hand of the gazlan, for he does not have a migo of "I returned them" [Shach]. But if they did not see anything in his hand now, and he has a migo of "I returned them," he is believed with this migo to claim anything that does not contradict the witnesses, such as if he claims "I seized them for my debt" or if he claims "I only took what the witnesses saw" [it appears to me]. For even a complete gazlan is believed to claim "I returned them" [Netivot HaMishpat] and he takes a shevuat hesset and is exempt. But when there are eyewitnesses to some of the vessels and he is established as a gazlan such that he cannot say "I returned them," he has the status of a gazlan where the victim of the robbery swears and takes according to the enactment of the sages.

And specifically when the victim of the robbery claims objects that he is presumed to possess, or that people deposit such objects with him—and it is necessary to clarify exactly who deposited with him and they are questioned [Netivot HaMishpat]—and if he claims "they are mine," he is not believed with a migo of "deposit," for it would be like a migo in the place of witnesses [Shach] when he is not presumed to possess them. And likewise, those objects must be things that it is possible to carry under one's garments if the robber hid them under his garments. And likewise, he must claim objects that are typically placed in the location where the robber entered. And if one of these details is missing, if he entered specifically to rob, it is not possible to administer an oath to the robber. Therefore, if there are witnesses regarding some of the vessels and he has not yet returned them, such that he is obligated in an oath according to the law of "one who admits to a part," then automatically the victim of the robbery takes an oath and collects, according to the law of one suspected regarding an oath, where they reverse it upon the opposing party, as will be explained in siman 92. And if he returned the vessels or is prepared to return them, such that it is "here it is before you," or if he says that the victim owes him and it has not yet been clarified that he is a suspect and he does not admit to a part, or if witnesses testified that he entered to seize a collateral without permission—for even though his law is like a robber, nevertheless he does not become through this a suspect regarding an oath, as it does not seem to people that this person is a robber—therefore, some say that the defendant takes an oath of hesset and is exempt, and some say that he does not take an oath, for nevertheless his law is like a suspect regarding this matter in that he does not take an oath, but rather they impose a cherem stam, or according to our custom he accepts explicitly if he denies the money of his fellow and does not pay him. And when he accepts explicitly, he says that he does not owe so-and-so, for he does not admit to a part such that his law would be that the opposing party takes an oath and collects. And so too the essence of the enactment of the sages, who enacted that the victim of the robbery takes an oath and collects, must be that this is when he does not admit to a part or when he is not a total suspect, for if it were not so, even without this enactment the victim of the robbery would take an oath and collect according to the law of one suspected regarding an oath, where they reverse it upon the opposing party in a Torah oath [so it appears to me].

And so too, if witnesses saw him entering the house and did not see him exiting, or even if they saw him exiting but did not see anything in his hand or under his wings, and the homeowner says, "Such and such he took from me," then if he says, "I took nothing," he swears a shevuat hesset and is exempt. But if he says, "I did not enter at all," thereby contradicting the witnesses, he is not believed with an oath, even though he has a migo of "I entered and did not take," for this is a migo in the place of witnesses. Therefore, the homeowner swears and takes. And some say that even in such a case he swears a shevuat hesset and is exempt, for this is not called being contradicted by the witnesses, because we say that a matter which is not a person's responsibility, he does it without realizing; since he took nothing, he does not remember at all that he entered. And so is the primary ruling like this opinion [Shach], and according to this reasoning it was explained in siman 79, see there.

In this siman it will be explained that when witnesses see a person who entered the house of his fellow and exited, and he did not enter under the status of a gazlan or to seize a mashkon but rather as ordinary people who enter the houses of their fellows, and when he exited they saw him carrying vessels in his hand or under his wings and they do not know the reason, and after some time the owner claimed against him and says that he lent him these vessels and he says "they are purchased in my hand," there are many details in this, such as if it is the way of the owner to sell his vessels or if the one who entered is a modest person, he is believed to say "they are purchased," as will be explained. But in this law where he entered under the presumption of a gazlan or to seize a mashkon without permission, the gazlan is not believed to claim anything even when these aspects are present, and even if he claims "they are purchased in my hand," for since he entered under the presumption of a gazlan, the victim of the theft shall swear and take [Shach, subsection 7, according to the Rambam and the author]. And some say that when he claims "they are purchased in my hand" or "I took my own" or "you gave them to me for my debt," such that he does not make himself a gazlan, even here the victim of the theft is not believed to swear and take unless all the details that will be explained are present. But if he claims "I seized for my debt," whereby he admits that he did not act according to the law, the victim of the theft swears and takes even without the details that will be explained. And some distinguish between a claim of "purchased" and a claim of "they are mine," for this is against the presumption that everything a person has in his house is under the presumption of being his [Sma]. And it appears that this opinion is primary [see Urim VeTummim and Netivot HaMishpat].

If there was one witness testifying that he entered to rob or to seize a collateral without permission and took vessels under his wings, but he does not know what they are: if he says that he took nothing, he must swear to contradict the witness. And if he says, "I took them, but I took my own," or "I took them for my debt," since the witness does not know what was under his wings, he swears a shevuat hesset and is exempt. We do not apply in this case the law of "one who is obligated to swear to contradict a witness and is unable to do so must pay." For since even with two witnesses testifying thus, the victim of the robbery would only take with an oath, we do not apply in this case the law that "since he is unable to swear, he pays," as was written in siman 75 [Sma]. For specifically in a place where two witnesses would obligate him in payment without an oath, in such a case we rule regarding one witness that "since he is unable to swear, he pays," as the reason for the matter was explained there. Therefore, if the witness says that he saw what he took, that he did not hide them under his wings, and he says "they are mine," we do apply this law in this case, and he must return those vessels that the witness saw [Netivot HaMishpat].

Just as a homeowner is trusted to swear and take, so too the guard of a homeowner, and even the wife of a guard swears that this person took such and such and he pays the homeowner, provided that the homeowner does not suspect the guard himself of taking them, or his wife. And certainly the wife of the homeowner and his sons and daughters, for anyone upon whom the guarding of the house rests swears and takes like the homeowner himself. However, a hired hand or a gleaner of the homeowner, whom he hired to dwell with him or to do some specific labor for him, such as to glean grain and the like, upon whom the guarding of the house does not rest, are not included in this; and even if he seized from the robber, it is of no avail [Sma].

And what is the law of this gazlan if the owner and his household were not there? If the witnesses do not know how much he took out, even though the owner claims that such and such vessels were missing from him and the witnesses say that according to their estimation he took those vessels because they saw him entering this house to commit a gezel or to take a mashkon and saw him upon his return carrying under his wings, nevertheless the gazlan does not swear because he is suspect regarding an oath, and the owner does not swear and take, for in such a case the sages only instituted the rule for a certain claim and not for a doubtful claim when he was not present at the time of his taking. Therefore, he can only impose a cherem satum on anyone who took his fellow's money and does not admit it. And even if the gazlan admitted that he committed a gezel of a portion, he returns only what he admitted, and we do not say that since he admitted a portion he is obligated in a shevuat de'oraita and cannot swear because he is suspect and must pay; for we do not say so except in a certain claim and not in a doubtful claim [Sma]. And behold, here the owner does not claim against him with certainty but only from an estimation. And if the gazlan says that it is due to him from the nigzal in a manner that what he took, he took of his own, then he does not become suspect as I wrote in section 4, and therefore he swears a shevuat hesset, and there is no shevuat de'oraita here even when admitting a portion since he says that he took his own [it appears to me]. And all this is specifically when the witnesses themselves do not know clearly how many vessels were there in the house before his entry and how many were missing after his entry. But if they testified that this owner had such and such vessels and they saw this person who entered his house to commit a gezel or to take a mashkon and he left and no other person entered there, and after his exit before any other person entered it they counted those vessels and they were found missing there and there is no other reason to attribute the deficiency, the owner takes without an oath from this one who entered those vessels that were missing, for this is testimony like actual seeing, as I wrote in siman 30 section 17.

And all these laws apply when it is established among the witnesses that he entered with the intent of a robber or to take a mashkon without permission, such as if they heard it from his mouth or the like. But when it is not established among them that he entered to rob or to take a mashkon, but rather they saw that this person entered the house of the homeowner and exited, and they saw that vessels were hidden under his wings, and after a time the homeowner claimed from him and said to him, "Give me the vessels that I lent you," and he says, "They are purchased in my hand, for you sold them to me"—then if the witnesses did not see him enter empty-handed, he is believed in any case with a migo that he could have said, "I brought in my own vessels and took them out" [Shach], and he takes a shevuat hesset and is exempt. But if the witnesses saw that he entered empty-handed and exited with vessels under his wings, there are several detailed laws in this: for if these vessels are from things that are not typically lent or rented, as written in siman 72, section 41, he is believed to say, "They are purchased in my hand," unless there are several flaws that indicate he did not sell them. That is, that this homeowner is not typically one to sell his vessels, and this one who took them out under his wings is not among the modest people who do not carry vessels in public, and those vessels are not the way of people to hide them under the wings but rather they carry them openly—for then there is a sign that he hid them in order to deny them, and then the beit din returns the vessels to the homeowner, and he takes a shevuat hesset that he did not sell them nor give them. But if one detail is missing, such as if he is typically one to sell his vessels, even though this man is not modest and these vessels are typically carried openly, we say that the homeowner requested of him not to carry them in public. And likewise, if it is the way of these vessels to be hidden under the wings, or if this man is modest and it is not his way to carry vessels in public, even if this homeowner is not typically one to sell his vessels, we say perhaps he needed money and sold them. And likewise, if he did not hide them under the wings and carried them openly, for it is a sign that he did not guard himself, he is believed to say, "They are purchased in my hand" in any case. And if the vessels are from things typically lent or rented, they are always in the chazakah of their owners, even though he took them out openly and also [the homeowner] is typically one to sell his vessels; for since there are witnesses that the vessels are his, we say that he lent them, and they are removed from him and handed over to the homeowner, and he takes a shevuat hesset that he lent them to him, unless the one who took them brings proof that he sold them or gave them to him. And if the one who took them requests time to bring proof, the vessels are placed in beit din or in the hand of a trustee until he brings proof [it appears to me]. And in any place where he is believed to say, "They are purchased in my hand," he is also believed to say that they are a deposit in his hand, or that he handed them to him for his debt, or that he seized them as a mashkon for his debt, because he has a migo of "They are purchased in my hand" [Taz].

That which we have said, that regarding items made to be lent or rented the owner is believed, this is specifically when he has witnesses that these vessels were his and there are witnesses that before they came to beit din they saw the vessels in the hand of the one who took them. But if they did not see them in his hand, he is believed to say "they are bought" with a migo of "I returned them to you." And similarly, when there are no witnesses that the vessels are his, he is believed with a migo that he could have said that the vessels were never his. And similarly, regarding items that are not made to be lent or rented where the one who produces them is believed, this is specifically when witnesses did not know that they came into his hand by way of a loan or rental; but if witnesses knew that they came into his hand by way of a loan or rental, he is not believed to say "they are bought in my hand." And that which we have said, that when there are no eyewitnesses he is always believed to say "they are bought in my hand" with a migo of "I returned them," this is even when he entered to seize a mashkon without permission; as long as there are no eyewitnesses, he is believed to say "I returned them to you," and with this migo he is believed in whatever he claims [Sma and Shach], and he swears a hesset oath that it is so according to what he claims and is exempt. And similarly, in any place where the owner is believed to say "I lent them" or "I rented them to you," he is also believed to say "they are stolen in your hand" with a migo of "they are lent," and this is not a migo to extract, for since they saw him enter empty and leave full, he is not considered a muhzak such that the owner would have the status of one who extracts [ibid.]. And there are those who say that he is not believed to say "they are stolen in your hand" even when he has a migo of "they are lent," and even if there are all the deficiencies that have been explained, because we do not presume people to be thieves, for he does not have the power through a migo to give his fellow the name of a thief, unless this man is established as a thief, for then he is believed to say about him "they are stolen in your hand" through a migo of "they are lent." And all the laws that were explained in the previous section apply to him, for if all the deficiencies that were explained are not present, the one who produces them is believed even without an oath, for he cannot be made to swear since he is presumed to be a rasha, and the opposing party does not swear and take since there is no admission in part [Shach], unless it appears clear to the beit din according to their assessment that the vessels belong to the owner, for then they impose a cherem stam upon the owner and return the vessels to him [it appears to me].

All this that has been explained, that he is believed to say "they are purchased in my hand" according to the details that have been explained, this is specifically when the homeowner was in his house at the time he took the vessels; for then it is possible that the truth is with him, that the homeowner sold them or paid them for his debt. But if witnesses saw that he entered the domain of his fellow and took them not in his presence, he is not believed to say "they are purchased in my hand" in any case. And even if he says "I purchased them previously and he authorized me to receive them not in his presence and I took them," he is not believed [Shach] unless he brings proof for this. Because when he took them not in his presence, the vessels remained in the chazakah of the homeowner and he is obligated to return them. And there is no oath here at all, since the homeowner was not in his house and the witnesses saw him enter empty and exit with vessels, and they extract them from his hand without any oath [Sma], and only a cherem stam can be cast upon him. And if he has claims against the homeowner, he shall first return his vessels and afterwards sue him in beit din. And see in siman 364.

And so too, if witnesses see someone snatch an object or money from another and he says, "I took them for my debt," he is not believed in any case. Since there are witnesses that he snatched it from his hand or from his domain, he is obligated to return them without any oath. This is not similar to a victim of robbery who is sometimes believed, as I wrote at the beginning of this siman, for there the witnesses do not testify that he snatched it against his will, and it is possible that he took his own; but when they saw the snatching, he is currently in the status of a robber and must return it, and afterwards, if he has a claim, he may litigate with him. And this is specifically when they see the object in his hand now, for if not so, he would be believed with a migo of "I returned it," as one who robs another in the presence of witnesses does not need to return it to him in the presence of witnesses [ibid.]. And if there is only one witness there and he denies it, he must swear a shevuat de'oraita to contradict him. And if he does not deny it, but rather says that he took his own or seized it for his debt, he must return it, for he is one who is obligated to swear an oath to contradict the witness, and this oath he cannot swear, for he is pleading another claim of which the witness has no knowledge; thus he is one who is obligated to swear and cannot swear, and he pays [ibid.]. And so too regarding what was explained in the previous section, the law is such, for since he is in the status of a robber, and if there were two they would obligate him in money, one obligates him in an oath, and when he cannot swear, he pays, as I wrote in siman 75.

And just as the sages established a regulation for a victim of robbery that he may take an oath and collect, so too they established this regulation regarding fire: that if one kindled fire in the property of his fellow and there are witnesses to this, the injured party takes an oath with a sacred object as to how much he was damaged and collects. He is believed regarding everything that he is presumed to possess of his own or that would be deposited in his hand, according to the details that will be explained in siman 418. And they likewise established this regulation regarding an informer: that if there are witnesses that he handed over the money of his fellow to a robber and they do not know how much he caused him to lose, and the injured party says "he caused me to lose such and such" and the damager denies what he says, the injured party takes an oath and collects, according to the details that will be explained in siman 388. And they likewise established this regulation regarding one who damages the money of his fellow and there are witnesses that he damaged it but it is not known how much he damaged, the injured party takes an oath and collects regarding items that he is presumed to possess, as is written there. And if all of these admit that they caused him loss but they do not know how much, the loser collects without an oath, for it is like "fifty I know and fifty I do not know" which was explained in siman 75, where he is obligated to pay [Taz].

And so they sometimes applied the ordinance of a victim of robbery to a deposit, such as one who deposited with his fellow a tied sack and he was negligent with it, and the depositor says there were gold and pearls in it, and the bailee says "I do not know, perhaps there were dross or sand in it," the owner of the deposit shall swear and take. And even though according to the law the bailee should have sworn and been exempt, for it is like one who says "I have a maneh in your hand" and the other says "I do not know," who is exempt, as has been explained in siman 75; and furthermore, it is similar to one who claims wheat from him and the other responds to him "I do not know if it was wheat or barley," where he swears that he does not know and pays for barley, as has been explained in siman 88; nevertheless, the sages ordained thus so that a person should not be negligent with the deposit of his fellow [Shach]. And specifically when he claims from him something that he is assessed to possess or that people deposit with him. And if the bailee says "I am certain that it was full of dross or sand," he shall swear that it was so and be exempt. And if the bailee says "I know that there was gold or pearls in it, but I do not know how much," the depositor takes without an oath, for he is one who is obligated to swear and is unable to swear according to the law of one who admits to a part, and he pays. And there are those who disagree on this, for we do not say "one who is obligated to swear and is unable to swear pays" except in a place where he should have known, as has been explained in siman 75, and in this case he should not have known. And the sack that he admitted to we do not consider an admission of a part according to all opinions, for it is not considered anything [Shach], and even if it is worth a perutah, for the claim is not considered against him at all [it appears to me]. And so too anything similar to this. However, there are those who disagree with this entire law and hold that they did not ordain the ordinance of a victim of robbery for a deposit at all, for this ordinance is only relevant to an actual damager or a robber, and not to negligence with a deposit. And the first opinion is the view of the Rif and the Rambam [Chapter 5 of Hilkhot Pikadon]. And in the Yerushalmi, chapter HaKoneis, such an incident is found, and the sages obligated him to pay based on the oath of the depositor. And the last opinion is the view of the Ra'avad [ibid.], and the reason they obligated him there is because he admitted to the sack, and it is like an admission of part of the claim, and when he says regarding the rest "I do not know," he is one who is obligated to swear and is unable to swear and pays. And by law he should have paid even without the oath of the depositor, but because he should not have known, they therefore imposed an oath upon the depositor [Maggid Mishneh ibid.]. And our teachers, the authors of the Shulchan Arukh, brought only the first opinion. And it is to be wondered at our teacher, the Beit Yosef, who wrote in the Shulchan Arukh, section 10, this law, yet in his great book in siman 298 he rejected this law; for indeed there is much to wonder at in making an ordinance of a victim of robbery for a deposit, and in the Gemara it does not imply so, and several of our teachers wondered at this and inclined the Yerushalmi to another intention. And if we say that they penalized him, why was he not precise to know what was in the sacks? Behold, it is a daily occurrence that people deposit full sacks and boxes and the bailee does not know what is in them [ibid.]. And the Rosh, of blessed memory, at the end of the chapter Shevuat HaDayanim, deliberated on this and wrote at the end of his words: And I heard that the Geonim wrote that they made an ordinance of a victim of robbery for a deposit, and one should not move from their words. Thus far his words. And so wrote the Tur at the end of siman 298; see there. And it seems that he holds that nevertheless it is somewhat like a damager, in that he did not know at all what types the deposit was, whether simple items or precious ones, and did not set his heart to guarding them at all, and he is considered somewhat like a damager, and therefore they ordained that he shall swear and take. And reason dictates so, for certainly it is not the way of the bailee to know the details of the deposit, but he must necessarily know what kind of things are deposited with him, for the guarding of simple things is not similar to precious ones. And so one should rule. And therefore, if he knew what was there but does not know how much, we do not judge in this the law of "one who is obligated to swear, etc." according to the "there are those who disagree" that we wrote, for in a place where he should not have known we do not judge this law. And according to this opinion one should rule, as has been explained in siman 75 [so it appears to me in my humble opinion].

And they similarly established this enactment regarding an injured party, that he swears and takes. How so? Behold, if witnesses saw that he entered the domain of his fellow whole and emerged injured, and they did not see him at the time he injured him, and this one says, "He injured me," and that one says, "He injured himself," behold, this one swears and takes according to the injury. And if there is proof that this one injured him, such as if the injury was in a place where it is impossible to injure oneself, such as if he was bitten between his shoulders and the like, and no other man was there, and from another cause it is not possible for such an injury to occur, behold, this one takes without an oath. And even when there are other people present, but it is clear to the witnesses that those others did not injure him, behold, this one takes without an oath. And all this is specifically when the injurer and the injured party were quarreling with one another; but if they did not see them quarreling with one another, he does not take unless the matter is clear and clarified, and then he takes without an oath [Sma]. And if there were no witnesses at all regarding the matter of the injury, and the injurer admitted on his own that he injured him, but says that the injured party began by striking him, he is believed with a migo that he would not have admitted it [ibid.]; and the injured party has against him only a herem stam that he did not begin by injuring him. And if the injured party died, the heirs do not collect with an oath even when they are able to swear, such as if they were present at the time of the injury, for they did not establish this enactment for the heirs [Urim VeTumim].