We begin three lines from the bottom of the page. Rabbi Chiya teaches a novel point in the name of Rabbi Yohanan. The case is one in which a person was appointed to watch an item. The owner then comes and asks, “Where is my item?” The watchman replies, “I am sorry; it was stolen.” Witnesses subsequently come and establish that the watchman himself was the thief. In that case, he must pay double.
The law of a watchman who claims that the item was stolen applies only when he partially admits and partially denies the claim. For example, if he was asked to watch two items and he says that one of them was stolen, he is admitting that he is returning one item while claiming that the other was stolen. This is a case of partial admission and partial denial.
Why is this the only case in which the watchman is liable for the double payment? The passage concerning a watchman uses the words “for this is it.” This expression indicates that he is admitting, “I owe you this, but no more.” In other words, he is admitting part of the claim and denying the rest. According to this interpretation, the law of a watchman who claims that the item was stolen applies specifically when he partially admits and partially denies.
Another interpretation understands those words differently. The Torah combined two separate passages. One passage concerns the regular case of a watchman, while the phrase “for this is it” does not concern a watchman at all. It concerns a person who borrowed money. When the lender comes and asks, “Where is my money?” the borrower must take an oath only when he partially admits the claim.
For example, a person lends someone one thousand dollars. The lender comes and asks for the thousand dollars, and the borrower replies, “No, I already paid you five hundred dollars. I owe you only five hundred.” He is admitting part of the claim and denying the remainder. In that case, the Torah teaches that he must take an oath. If, however, he denied the entire loan and said, “I do not owe you anything,” he would not have to take an oath. We will see the reason for this distinction.
According to this understanding, the law of partial admission and partial denial was stated with regard to a lender and borrower, not with regard to the regular case of a watchman. A watchman must take an oath in every case. If a person is watching an item and the owner comes and asks, “Where is my item?” the watchman must take an oath whether he claims that everything was stolen or that only part of it was stolen. There is no distinction between a complete denial and a partial denial.
The case of “for this is it,” however, is entirely different. It concerns a borrower. The lender comes and says, “Where is the one thousand dollars I lent you?” The borrower must take an oath only when he partially admits, saying, “I owe you five hundred dollars, and I already paid you the other five hundred.”
The Gemara asks why a borrower who partially admits must take an oath, while one who denies the entire loan does not. Rava explains this through the principle that a person is generally not brazen enough to deny a favor that was done for him. If someone lent him money, he would not ordinarily come and say, “You never lent me anything. I owe you nothing.”
In truth, the borrower may wish to deny the entire loan. The reason he does not do so is that he lacks the brazenness to deny the favor completely. Therefore, when he says, “I owe you five hundred dollars,” we cannot conclude that he must be telling the truth simply because he could supposedly have denied the entire loan. Denying the entire loan was never a realistic option for him. A person is not generally brazen enough to do that.
One might have reasoned as follows: If he says that he owes only five hundred dollars, perhaps he is an honest person, because if he wanted to lie, he could have claimed that he owed nothing. The answer is that he could not have made that claim. Since a person is not ordinarily brazen enough to deny the entire favor, his partial admission does not prove that he is being truthful. He may really want to deny the entire loan, but he does not have the courage to say so.
Therefore, when a person partially admits the claim, we require him to take an oath. When he denies the entire loan, however, we accept his denial, because a person would not ordinarily be brazen enough to say, after receiving a loan, “I owe you nothing.” If he nevertheless says that, we assume that he is telling the truth.
The Gemara then asks: If a person who partially admits may really be lying—if he wants to avoid paying the remaining five hundred dollars—how can we require him to take an oath? Just as he is suspected of trying to steal half the amount, perhaps he is also suspected of taking a false oath.
The Gemara answers that, in truth, the borrower would prefer to admit that he owes the entire amount. The reason he says that he owes only five hundred dollars is that he does not currently have the money. He is thinking, “If I admit that I owe the entire amount, the lender will demand all of it immediately. I do not have the money yet. Let me acknowledge only part of the debt and gain some time until I can obtain the rest and repay him.”
That is why the Torah requires him to take an oath immediately. If he is told, “Swear that you owe only five hundred dollars,” he will not want to take a false oath. He will therefore say, “I cannot swear to that. In truth, I owe the entire thousand dollars.” The oath is intended to make him admit the full amount immediately rather than postpone payment.
Thus, in the case of a lender and borrower, there is a reason that only one who partially admits must take an oath, while one who denies the entire claim does not. When a borrower says, “I owe you nothing,” we assume that he is telling the truth, because a person would not ordinarily have the brazenness to deny a favor done for him. When he says, “I owe you five hundred dollars,” however, we do not know whether he is telling the truth. He may want to deny the entire loan but lack the courage to say so. Since he has no practical option of denying everything, his partial admission does not establish his honesty. We therefore require him to take an oath, hoping that the oath will cause him to admit that he owes the entire amount.
This reasoning applies to a lender and borrower. It does not apply to a watchman. In the case of a watchman, the owner has given him an item to watch, and the watchman is doing the owner a favor by accepting responsibility for it. Because the watchman is performing the favor for the owner, he may be brazen enough to say that the item was stolen. Therefore, even when he completely denies the claim, we cannot say that he must be telling the truth. A watchman must take an oath whether he partially admits or completely denies.
This is the distinction taught by Rabbi Chiya: There is a difference between a lender and borrower and a watchman. A watchman must take an oath in every case. If someone gives him two animals to watch and he says that both were stolen, he must take an oath. If he returns one animal and says that the other was stolen, he must also take an oath.
With regard to a lender and borrower, however, if the borrower says, “I owe you nothing,” we believe him and he does not take an oath. If he says, “I owe you only half,” we require him to take an oath. That is the reasoning of Rabbi Chiya.
Rami bar Hama taught in a baraita that all four categories of watchmen take an oath only when they partially admit. The four categories are an unpaid watchman, a paid watchman, a borrower, and a renter.
An unpaid watchman is someone who watches an item without receiving payment. A paid watchman is paid to watch the item. A borrower uses the item and assumes responsibility for it, and a renter pays to use the item. These are the four categories of watchmen discussed by the Torah.
How do we know that an unpaid watchman takes an oath only when he partially admits? If the owner comes to an unpaid watchman and says, “Return my item,” and the watchman replies, “I am sorry; it was stolen,” he is ordinarily exempt from payment for theft or loss, but he must take an oath that the item was stolen. How do we know that this oath applies only when he partially admits?
The verse concerning an unpaid watchman explicitly uses the expression “for this is it,” which indicates partial admission: “I acknowledge this part, but not the other part.” With regard to a paid watchman, the Torah derives the law through an analogy based on the expression “when a person gives,” which appears both in the passage concerning an unpaid watchman and in the passage concerning a paid watchman. Since the unpaid watchman takes an oath only in a case of partial admission, the same applies to a paid watchman.
With regard to a borrower, the passage says, “And when a person borrows.” The letter vav connects this passage to the preceding passage concerning a paid watchman. Just as a paid watchman takes an oath only when he partially admits, so too a borrower takes an oath only when he partially admits.
As for a renter, if we view a renter as having the same law as a paid watchman, then the same rule applies: he takes an oath only in a case of partial admission.
There is another law concerning an unpaid watchman. If the watchman used the deposited item himself before taking the oath, and he subsequently claimed that the item was stolen, he must pay double if he is caught. The verse says that the watchman must take an oath that he did not use the item himself. If it is discovered that he did use it, he is liable.
In that case, the watchman lied about two matters. First, he claimed that the item had been stolen. Second, he claimed that he himself had not used it. In reality, he had used the item himself, and he was therefore the thief. Since he took an oath that he had not used the item, and witnesses established that he had used it, he must pay double.
It follows that, according to this interpretation, if he merely swore that the item had been stolen but had never used it himself, he would not pay double. The verse is referring specifically to a case in which the watchman both claimed that the item was stolen and swore that he had not used it.
This leads to a dispute between Rabbi Chiya bar Yosef and Rabbi Hanan. The question is whether the law applies only when the watchman used the animal or whether it applies even when he never touched it. For example, the animal may have remained standing beside the trough throughout the entire period. The watchman never touched it, but he nevertheless claimed that it had been stolen.
According to Rabbi Hanan, the law may apply even in such a case. The watchman did not use the animal and did not touch it; he merely claimed that it had been stolen. Alternatively, perhaps the law applies only when he actually used the animal. Once he used it, he acquired it through that use, and perhaps the oath he later takes is no longer the oath of a watchman. Since the animal has become his, the laws of a watchman may no longer apply.
The question is whether Rabbi Chiya bar Yosef meant that the law applies not only when the watchman used the animal, but even when he did not use it. I did not hear the answer to this question, but I heard a similar case.
Suppose a watchman claims that the deposited item was lost and takes an oath that it was lost. He later changes his claim and says, “I was mistaken. It was not lost; it was stolen. My original claim was false.” He then takes an oath that it was stolen, and witnesses come and establish that he himself stole it. In that case, he is exempt from the double payment.
Why is he exempt? Once he initially claimed that the item was lost and took an oath, he was believed with regard to the loss. At that point, he was no longer obligated with respect to the item. When he subsequently came forward on his own initiative and said, “I was lying; it was actually stolen,” he was not obligated to take that second oath. Since he voluntarily changed his claim, the item was already considered his with respect to the first claim that it had been lost. Therefore, the oath concerning the theft was not an oath regarding someone else’s property.
We see from this case that once a person acquires the item, a subsequent oath does not create liability for double payment. Similarly, Rabbi Yohanan may say that the watchman is liable only when he had not used the item before taking the oath that it was stolen. Once he used the item, it became his through that use. When he later claims that it was stolen, the oath is no longer the oath of a watchman, and he is not liable for double payment.
One might use the previous case to explain the law as follows: Once the watchman claims that the item was lost and takes an oath, he has no obligation to take another oath. He himself voluntarily returns and says, “I want to change my claim and say that it was stolen.” Since he was not obligated to take that second oath, his original claim that the item was lost remains effective. When he changes his claim on his own initiative and says that it was stolen, we do not impose the liability of double payment.
The question is whether this reasoning also applies to an ordinary watchman. In the ordinary case, the owner comes and asks, “Where is my item?” The watchman is obligated to take an oath. He swears, “I did not use the item; it was stolen.” If this is a case in which he was required to take an oath from the outset, perhaps Rabbi Hanan will agree that he must pay double even if he used the animal.
At this point, the argument is not limited to a case in which the watchman swore that he had not touched the item. It may apply even when he actually used the animal. One might have thought that, once he used it, he acquired it and the laws of a watchman no longer applied. The answer is that in this case he had already been obligated to take an oath. Since the oath was required of him, the liability for double payment may remain even after he used the animal.
That is different from the case in which he first claimed that the item had been lost. Once he made that claim and took the oath, he was not obligated to take a second oath that it had been stolen. His later oath was voluntary, which is why there is no liability for double payment. In the ordinary case of a watchman, however, the owner demands the item and the watchman is obligated to swear that it was stolen. Since the initial oath was required, he may be liable for double payment whether or not he used the animal.
This is what was taught: One authority said in the name of another that when a watchman first claims that the item was lost, takes an oath, changes his claim, takes another oath that it was stolen, and witnesses then establish that he stole it himself, he is exempt. He was not obligated to take the second oath. Once he took the first oath, he had completed the matter, and the subsequent oath was voluntary. Therefore, this is not considered the type of oath that creates liability for double payment.
That case cannot be used as proof for the regular case of a watchman. In the regular case, the owner asks, “Where is my item?” and the watchman swears that it was stolen. Since he was obligated to take that oath, he may be liable for double payment in every case, whether or not he used the animal.
The first opinion taught that liability applies only when the watchman took two oaths: “I swear that it was stolen,” and, “I swear that I did not use the item.” The later opinion adds that even when he did not use the animal and swore only that it was stolen, he must pay double. Furthermore, even when he did use the animal, he remains obligated, because in the regular case of a watchman he was required to take the oath from the outset.
Therefore, the case of a lost item cannot serve as a proof to the contrary. When the watchman initially swore that the item was lost and only later changed his claim to theft, he was not obligated to take the second oath. That is why he is exempt from double payment. In the regular case, however, the original oath that the item was stolen was required of him, and that is why the liability for double payment applies.
May everything be for the sake of Heaven.