Siman 95

It is written: "If a man gives to his fellow silver or vessels to guard..." etc., and the tradition has come that this verse is expounded as a "generalization, specification, and generalization." "If [a man] gives" is a generalization; "silver or vessels" is a specification; "to guard" returns and generalizes. In a "generalization, specification, and generalization," you may only judge according to the nature of the specification: just as the specification is explicitly a movable object and its body is monetary value, so too everything that is a movable object and its body is monetary value, one swears concerning them. This excludes lands, which are not movable, and slaves, who are compared to lands in the entire Torah, and documents, whose bodies are not monetary value as they only exist for evidence. Similarly, consecrated property is excluded from an oath, as they are not included in "his fellow," and likewise those of idolaters (the Rambam) and of a resident alien (Urim VeTumim) [in ancient times], one does not swear concerning them by Torah law. Regarding lands, there is no distinction between the land of Israel and outside the Land, and it makes no difference whether it is an oath of partial admission, an oath of a single witness, or the oath of guardians. And it is not only that one does not swear regarding their guarding, but they are not included in the law of guarding at all, for they were excluded from all the laws of the section; and one is not liable for them unless he damaged them by hand according to the law of a damager. But regarding guarding, one is not liable for them even if he was negligent in their guarding, for a negligent person is not like one who damages by hand. Whether it is an unpaid guardian, a paid guardian, a borrower, or a renter, they are exempt from all laws of their guarding. If he stipulated to pay, everything is according to his stipulation, for a person can obligate himself with his money even in that which the Torah did not obligate him; however, the obligation must be through a kinyan (Sma). And in siman 66, section 48, it was explained regarding this in the matter of documents, and the same applies to all these matters which share one law. There are some of our teachers who hold that if they were negligent with them they are liable, for his law is like a damager, as is written there. Furthermore, it was explained there in section 9 that royal notes that circulate in the country like complete currency do not have the law of documents but rather like actual silver. Regarding all these things, when they are lost, even when the claimant now claims money, he is exempt, since during the guarding it was one of these. Regarding documents, there is no distinction between a document with witnesses and a document in the handwriting of the borrower, the seller, or the giver. If there is a lien on lands in the document, it was explained in siman 88, section 21. The laws of consecrated property are not relevant in this time, for consecrated property is only for the Altar or for the Temple maintenance; but property consecrated for the poor, or for a synagogue, or for a Sefer Torah and the like, their law is like the property of an ordinary person and one swears concerning them.

And specifically regarding a Torah oath, one does not swear upon them, but regarding a heset oath or an oath of the Mishnah, one does swear upon them. For a Torah oath is a decree of the Torah, but regarding oaths of the words of the sages which the sages instituted for the sake of the order of the world, there is no reason to distinguish between all of these and movable property. And by means of a gilgul, one swears upon them by the Torah. And that which we said, that one swears a heset oath upon them, this is only in a case of a certain claim as with every heset oath. Therefore, regarding watchmen where the claim of the owner is a claim of uncertainty, one does not swear a heset oath unless he claims against him with a certain claim (see Sma, subsection 7).

Everything attached to the ground is like the ground, and even that which was detached and subsequently attached, such as houses, walls, fences, and pipes that were fixed to the ground, and ovens and the like. And some say that what was detached and subsequently attached is not like the ground; however, even according to this opinion, houses and buildings are like the ground (Shach), for regarding acquisitions and liens they are like the ground, and likewise regarding an oath. Therefore, if one borrowed or rented a house, or was a watchman over a house, whether an unpaid watchman or a paid watchman, and the house burned down—even through his negligence in not guarding the fire properly—since he did not burn it with his own hands, he is exempt. And in siman 301 more of this will be explained.

A thing that grows from the ground, such as grain, seeds, vegetables, and trees, has the law of land. If their time has arrived to be harvested, or the fruits of the trees to be gathered, such that they no longer need the ground or the trees, some say their law is like movable property in every respect, for anything standing to be harvested is considered as if it were harvested. The opinion of the Rambam is that regarding shomerim, their law is like land; since he gave them to guard while they were attached, and he did not give them with the intent that they should detach them from the ground, they are like what is attached (Shach). Therefore, if he gave him vines or grain to guard and he was negligent with them, even if they no longer need the ground, he is exempt from their guarding and from an oath. So too, if he claimed from him, "I delivered ten loaded vines to you to guard," and the other says there were only five—and behold he is a modeh b'miktzat in a manner where this is not "heilech," as will be explained—nevertheless, he is exempt from a Torah oath, for he is a modeh b'miktzat according to the Rambam (Urim VeTumim). But if he claimed from him, "I sold you ten loaded vines" or "I lent them to you," and the other says there were only five, their law is like movable property; since he sold or lent them to him with the intent to detach them, their law is not like land according to the Rambam, of blessed memory. The opinion of our teachers the Tosafot, the Rosh, and the Ra'avad is that for all matters their law is like land, even if they do not need the ground at all and are standing to be detached; nevertheless, they do not resemble movable property since they are still attached. Therefore, in all laws of the Torah regarding oaths, kinyanim, ona'ah, and the like—and certainly regarding shomerim—their law is like land, except regarding creditors in a place where they do not collect from movable property, he does not collect from these either. The reason is that just as the creditor does not rely on movable property because it is in the power of the debtor to smuggle them away, so too he does not rely on grain and fruits whose time has arrived to be harvested, for he can harvest them and smuggle them from the creditor. Therefore, only for this is their law like movable property. One of our teachers, the later authorities, decided in favor of this opinion (Shach). However, it is a simple matter that in any case, the one in possession can say "kim li" according to this opinion that their law is like land (Urim VeTumim). Regarding the gift of a shekhiv mera, it will be explained in siman 257 with the help of Heaven.

According to that opinion which was explained, that when the time has arrived to harvest them their law is like movable property and one is obligated in a shevuat modeh b'miktzat, it has already been explained in siman 75 that when one claims a maneh and the other admits to fifty and says to him "heilech," he is exempt from a shevuat d'oraita. According to this, one must ask how there can be a shevuat d'oraita of modeh b'miktzat regarding things standing to be harvested, for it should be heilech? Therefore, some say that it deals with a case where he claimed the money for the produce, such as where he said to him, "I delivered to you ten vines laden with grapes and you harvested them and ate them or sold them, so pay me their value," and the other says, "You only delivered five to me and I will pay you their money," and it is not heilech. And even though according to this the claim in beit din is for actual money, nevertheless, since the claim stems from land, its law is like land. Therefore, regarding land in such a case, or produce that needs the land, the law of this claim is like the law of a claim for land (Ran). And there are those who disagree on this and hold that if he claimed money for the produce, in every case it is called movable property, even if he claimed money for the land itself from the damaging of the land, such as where he dug pits there, its law is like movable property since he is claiming money from him now. Rather, it deals with a case where he claims from him, "I delivered to you ten laden vines," and before us now are five laden and five harvested, "and behold I delivered to you all ten when they were laden," and the defendant says, "You only delivered to you five laden ones, and I harvested them and you are owed their value." And in this we say that if they need the land, their law is like land, for even though the admission is for a movable thing, nevertheless the denial is for a thing that needs the land, and one does not swear on the denial of lands; and when they do not need the land, their law is like movable property.

And even according to the first opinion in the previous section, it is specifically regarding a watchman to whom one entrusted attached property, and this opinion holds that even when he claims the money, their law is like land. However, in a sale where he sold him land and claimed the money for the land he sold him, and he admits to a portion of the money, it is like a claim for מטלטלין, since they do not disagree over how much land he sold him, but only disagree over the money. And even if they disagree over the quantity of the land, such as where this one claims a maneh because he sold him one hundred cubits of land, and the other admits to fifty and says he only sold him fifty cubits, and they are not extant because he dug them up, nevertheless, since the beginning of the claim was for money, its law is like מטלטלין (Shach). Unless they disagree over the body of the land, such as where he claims one hundred cubits of land and he admits to fifty cubits, for then even if the fifty cubits he admitted to are not extant because he dug them up, such that it is not "here it is before you," he is exempt from a shevuat de'oraita. And similarly regarding shtarot, if he claimed the value of the paper of the shtarot, since the beginning of the claim is for money, its law is like מטלטלין:

And so some say when one dug pits, trenches, or caves in his fellow's field and damaged the land, he is indeed liable to pay, for he damaged directly; for it is not called a claim of land unless he claims that he should fill the excavations. And then, whether he claims that he dug and he says "I did not dig," or whether he claims that he dug two pits and he says "I only dug one," where he is a modeh b'miktzat, or if there was one witness there that he dug and he denies him—nevertheless, he is exempt from a shevuat de-oraita, since he claims that he fill the excavations, it is a claim of land. But if he claimed that he pay for the damage, this is like any other monetary claim, even though the root of the claim is on account of land. And some say that even in such a case it is called a claim of land, but the primary view is like the first opinion (ibid.). And there are those who arbitrate in this matter: that if the damager has the right to fill the excavations and not pay money, then even when he claims that he pay in money, it is called a claim of land; but if he does not have the right or it is not within his ability and he must pay money, it is called a monetary claim even though it comes on account of land, and so it appears primary for the law. And if he took permission from him to dig in his land for a price, each excavation for a dinar, and there is a denial between them where he is a modeh b'miktzat or there is one witness, it is certainly called a monetary claim (Urim Ve-Tummim).

If one claimed vessels and lands, whether he admitted to all the vessels and denied all the lands, or whether he admitted to all the lands and denied all the vessels, or whether he admitted to a portion of the lands—even if they are not physically present, such as if he dug them up or a river swept them away—and denied all the vessels, he is exempt from a Torah oath. For the oath of an admission to a portion is only applicable when the denial and the admission are regarding movable property whose essence is monetary value. However, if he denied a portion of the vessels and admitted to a portion of them, he is obligated to swear a Torah oath regarding the vessels; and regarding the lands, if he denied them, we roll the oath upon him also regarding the lands. And such is the law if one claimed vessels and slaves, or vessels and documents: the denial and the admission must be regarding the vessels, for then he is obligated in an oath of an admission to a portion and draws all of them in by rolling, as has been explained.

If he claimed rent money from him, such as by claiming, "You dwelt in my house for two months," or "Your merchandise was in my house and you owe me two months' rent," and the other responds to him, "I only dwelt for one month," behold, this is a partial admission. And if the rent for the month that he denied was two silver ma'ah, he swears a shevuat de'oraita, for the claim is not regarding the body of the land but rather its rent, which is movable property. And this is specifically when the time has already passed; however, if the time has not yet passed, it is considered like land (Shach). And according to this, if he claimed two dinars from him for renting from him for two months, each month for a dinar, and he says that the two months have already passed, and the defendant responds to him, "It is true that I rented it thus, but only one month has passed," there is no shevuat de'oraita here, only heset, since the denial is regarding the body of the house, for according to the words of the defendant, he still has to dwell there for another month. And all the more so if both admit that the time has not yet ended, but the lessor says, "I rented it to him for one month," and the lessee says, "I rented it from him for two months," and similar to this, for there is nothing here but a shevuat heset (Urim VeTumim). And even when the primary denial between them is regarding the money, such as when the lessor says, "I rented it to him for a dinar per month," and the lessee says, "I rented it for a dinar for two months," if the time has not yet ended according to the words of the lessee, there is nothing here but heset, and all the more so when both admit that the time has not yet ended (it appears to me).

Reuven claims against Shimon that he holds his field through robbery for several years, and he claims from him the land and the value of the produce he consumed, and Shimon answers him "these things never occurred" because "the land has always been mine," and Reuven brought one witness who testifies according to his words, we do not say that Shimon is obligated to swear a biblical oath to contradict the witness because of the produce and through an extension of the oath he shall swear also regarding the land; rather, he shall swear a heset oath. Since the primary claim is for the land and the produce follows automatically after the land, the entire claim is a claim for land (Ketzot HaChoshen). And even according to the first opinion in section 7, that when he claims from him to pay for the depreciation it is a monetary claim since the claim's essence is from land, nevertheless here there is only a heset oath, for there at any rate he only claims from him now money, but here his primary claim even now is land, and it follows that when he becomes liable for the land he will also become liable for its produce, but at any rate his primary claim is land. And similarly if Reuven comes to protest against Shimon who dwells in his house and claims also rent, or if he claims from Shimon who rented his house to others and took rent and claims from him that he should return to him the house and the rent he took, and Shimon answers him "the house is mine," and Reuven brought one witness, Shimon only swears a heset oath since the primary claim is for the house (ibid.), and so too anything similar to this.

Reuven claimed against Shimon: "I delivered a shtar to you and I had proof within it of ten dinars," and Shimon says "the matter never occurred," he shall swear a shevuat hesset. And if Shimon reversed the oath upon Reuven, Reuven shall swear a shevuat hesset that he delivered the shtar to him and he had proof within it of ten dinars, and since the shtar was lost he cannot collect them, and Shimon shall pay him (Tur). However, if he says: "It is true that you delivered it to me, but it was lost from me," he is exempt even from a shevuat hesset, for even if he was negligent with it and it was lost, he is exempt. And according to that opinion in section 1 that for negligence the shomer is liable, if he claims with certainty "you were negligent with it and you knew how much was written in the shtar" and he admitted to this, he is liable to pay. And if he says that he was not negligent with it, but rather it was stolen or lost by an ones, he shall swear a shevuat hesset according to this opinion. And if the claimant says that he does not know how much was written in it, or if he does not claim with certainty that he was negligent with it, he is exempt even from a shevuat hesset [Urim VeTumim]. And some say that nevertheless he shall swear that the shtar is not in his possession [Shach siman 66 subsection 124]. And this is only regarding a shtar that was written to "any bearer," for then it can be said that his desire is to collect with it from the borrower; but when it was written in the name of the lender, such that he does not have the ability to extract money with this shtar from the borrower, he is exempt from an oath [Netivot HaMishpat]. And only a herem stam can be cast upon him that he did not make a conspiracy with the borrower [it appears to me].

There is a dispute among the great authorities whether a person has the legal status of land, like a slave, or not. In practice, there is no legal difference in this, for if he sues him for damages of injury, since the essence of his claim is monetary, even if his legal status is like land, it is like a claim for movable property even according to the latter opinion in section 7, since in this case no other claim is relevant except for money [and in the Yerushalmi at the beginning of the fifth chapter of Ketubot it implies that every person has the legal status of land, see there]: