Rambam - 3 Chapters a Day

Without consulting the borrower, as reflected in the continuation of the halachah.

I.e., the son of the owner.

The commentaries question: How can the person become the borrower’s agent without being directly appointed to serve in that capacity? And conversely, if he was directly appointed in that capacity, why is the borrower not liable? Among the explanations given is that we are not speaking about a person actually appointed as an agent by the borrower, but about one who volunteered to serve in that capacity on his own initiative.

This law applies both to a Hebrew servant and a Canaanite servant. Rav Kapach states that in the authentic Yemenite manuscripts of the Mishneh Torah [and in the Rambam’s text of the Mishnah (Bava Metzia 98b), which is the source for this Halachah], “his servant” is not mentioned in this clause.

For the borrower has not accepted responsibility for it yet.

In these instances as well, the borrower did not tell the owner “Send it with this person,” nor did the owner notify the borrower, and the borrower consent.

Since the borrower specifically instructed the owner to send it with the designated person - or agreed to the owner’s suggestion - it is considered as if it entered the borrower’s domain from the time it is handed over to that person.

Only then is there a kinyan that causes the borrower to accept responsibility.
Rabbenu Asher rules that the borrower is liable in such a situation, since the owner followed his instructions. The Shulchan Aruch (Choshen Mishpat 340:7) quotes the Rambam’s ruling, and the Ramah does not object.

Without the owner’s consent.

By consenting, the owner agrees that the article is considered to be returned when given to the person designated.

For the borrower no longer has the right to make use of the article. This change in status applies even if the animal is still in the home of the person who had borrowed it.

He is placed in this category because he derived benefit from having the animal in his possession (Seifer Me’irat Einayim 340:13).

And the borrower is thus liable to make restitution for the animal. A renter, by contrast, is not liable if the animal he is renting dies.

If, however, he denies the owner’s claim different rules apply, as the Rambam continues to explain.

The owner must bring witnesses who testify to the truth of the owner's claim.

The Lechem Mishneh and others raise questions concerning the Rambam’s ruling, based on his statements in Hilchot To’en V’Nit’an 1:7 that a person is never required to take an oath when the plaintiff does not have a definite claim against him. In some of the situations mentioned above, the plaintiff does not have a definite claim. Hence, it would seem appropriate that the watchman not be required to take an oath.
The Lechem Mishneh explains that the principle stated in Hilchot To’en V’Nit’an applies with regard to loans and other claims of that nature. It does not apply to claims concerning borrowed objects, because the owner does not accompany the borrower at all times. Thus, it is likely that we will not be able to lodge a definite claim regarding the loss of the article.
The Shulchan Aruch (Choshen Mishpat 344:4) differs and obligates an oath only when the plaintiff has a definite claim. If he has an indefinite claim, the watchman is obligated only to take an oath that the animal died in an ordinary manner. He must, however, include in that oath that it was the rented ox that died or that he does not know which ox died, because of the convention of gilgul sh’vuah.
All the oaths mentioned by the Rambam in this Halachah are sh’vuot hesset, Rabbinic oaths administered without requiring the defendant to hold a sacred article (Kessef Mishneh).

As long as the watchman does not admit his liability, even if he says that he does not know whether or not he is liable, he is not required to make restitution.
The commentaries question the Rambam’s ruling, asking why the watchman is absolved of responsibility. Seemingly, the question resembles a case in which a person admits taking a loan and when asked to pay states: “I don’t know whether I repaid the debt or not.” In such an instance, as the Rambam rules in Hilchot To’en V’Nit’an 1:9, the borrower is liable. On the surface, the same law should apply in this instance, since the borrower admits accepting responsibility for the cow as a borrower and does not know whether he is absolved of that responsibility or not.
The commentaries attempt to resolve this question, focusing on the concept mentioned by the Kessef Mishneh in his gloss on Chapter 1, Halachah 5. There the Kessef Mishneh explains that although the lien on the borrower’s property begins when the article is taken, the actual obligation does not start until the article is destroyed. Therefore, in this instance, it is as if the borrower does not know whether or not he ever became obligated.

As explained in Hilchot To’en V’Nit’an 1:12, whenever a person is required to take an oath by a plaintiff, the plaintiff may require him to deny any other claims he has against him in that same oath.

The Rambam’s ruling can be explained as follows: In this instance - in contrast to the situation mentioned in the previous Halachah - the watchman is required to take a Scriptural oath, for he is modeh bimiktsat. (He admits a portion of the plaintiff’s claim. The plaintiff claims that he owes him for two cows and he admits owing him for one.) A defendant may not take a Scriptural oath when he does not know whether or not he is liable. Instead, since he cannot take an oath to deny the plaintiff’s claim - he cannot because he does not know - he is required to make financial restitution. (See Hilchot To’en V’Nit’an 4:7-8.)
On this basis, the Maggid Mishneh questions the Rambam’s ruling in the previous Halachah. In that instance, the watchman is required to take a Scriptural oath - as are all watchmen - that the animal died in an ordinary manner. If the watchman claims not to know which of the oxen died- seemingly, because of the convention of gilgul sh’vuah the plaintiff could require him to support his claim with an oath. And since he is unable to take this oath - for he does not know - he should be required to make financial restitution.
The Maggid Mishneh explains that since the oath required of a watchman does not stem from a definite claim, it is not powerful enough to serve as the basis to require an oath through the convention of gilgul sh’vuah.
In his Kessef Mishneh, Rav Yosef Karo offers a different resolution, explaining that the principle that a person who cannot take an oath is required to pay applies only with regard to the fundamental claim concerning which the person is required to take an oath. With regard to a secondary claim for which he is required to take an oath because of the principle of gilgul sh’vuah, it is acceptable to answer: “I don’t know.”
Rav Karo quotes this principle in his Shulchan Aruch (Choshen Mishpat 344:4). Seifer Me’irat Einayim 344:14 and the Siftei Cohen 344:5 explain that the Maggid Mishneh’s explanation has to be coupled with that of the Kessef Mishneh. Otherwise, there would be a contradiction between the Shulchan Aruch’s rulings, for in Choshen Mishpat 75:15, the Shulchan Aruch rules that even in a situation involving gilgul sh’vuah, we follow the principle that a person who cannot take an oath must make restitution.

Hilchot To’en V’Nit’an 4:7-8.

The fundamental purpose of the oath required of the watchman is to clarify how the article was lost.

Sefer HaMitzvot (Positive Commandment 242) and Sefer HaChinuch (Mitzvah 57) count the laws pertaining to an unpaid watchman as one of the 613 mitzvot of the Torah. (See also Hilchot Sechirut 1:2.)

As explained in Hilchot To’en V’Nit’an 1:12, whenever a person is required to take an oath by a plaintiff, the plaintiff may require him to deny any other claims he has against him in that same oath.

In addition, he must take an oath that the entrusted object is no longer in his possession (Chapter 6, Halachah 1).

For if the watchman was negligent, he is liable to make restitution for the article.

Misappropriating the article causes the person to be considered a thief and he becomes liable for the article until he returns it (Hilchot Gezeilah 3:11).

The Rambam is speaking about practices that were prevalent in the Talmudic period and in his age. In every community, the “ordinary manner watchmen do” depends on the local norms.

Although many people pass through the gatehouse, since the objects kept there are large and heavy, we do not suspect that they will be stolen from there (Seifer Me’irat Einayim 391:21).

Seifer Me'irat Einayim 391:22 raises a question regarding this statement based on Halachah 4, which states that gold and silver should be watched by burying them in the ground. Seemingly, this would also apply to silver and golden objects. He offers two resolutions:
a) That because gold and silver are malleable, they might be damaged if buried, and
b) here we are talking about clothes with golden and silver threads.

Even an unpaid watchman. The Rambam considers negligence to be equivalent to the destruction of the article, as stated in Hichot Sechirut 2:3.

This law is an expression of the principle: “If at the outset, a person is negligent in his care for the article, even if it is ultimately destroyed by forces beyond his control, he is liable.” In the notes on Hilchot Sechirut 3:8, it was explained that according to the Rambam, the negligence must have something to do with the object being destroyed. If the object would have been destroyed regardless of the degree of care the watchman gave it, even if he was negligent at the outset, he is not liable.

As mentioned above, this ruling is reflective of the living conditions prevalent in Talmudic times and in the Rambam’s era. In that vein, the Be it Yosef (Choshen Mishpat 291) quotes Rabbenu Tam, who rules that when a house is built in a sturdy fashion, it is preferable to hide money there than to bury it. At present, such articles should be guarded in safes or safe-deposit boxes.

Bava Metzia 42b states “either in the handbreadth closest to the ground or closest to the ceiling.” The commentaries question why the Rambam mentions only the latter point.

By tapping the wall, they can feel that it has been hollowed out within.

Some manuscript copies of the Mishneh Torah state “some of the Geonim.
The Derishah (Choshen Mishpat 291) explains that the Rambam’s wording implies that most sages did not accept this position, because thieves desire money more than any other object, even an object of innate value.

In contrast to other metals, which may rust or corrode in the ground.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 291:16) uses the expression “close to the time between the setting of the sun.... “This addition is in place because from sunset onward we are obligated to observe the Sabbath prohibitions that forbid digging or covering the money with earth. Note the Siftei Cohen 291:22, which states that this leniency applies from noon onward.

He is, however, required to bury the money immediately after the Sabbath concludes.

The Maggid Mishneh explains that the pronoun “he” refers to the person who entrusts the money. In Babylon in Talmudic times, wine was very expensive and it was customary to recite havdalah over beer. Although this is acceptable, Torah scholars would still follow the custom of making havdalah over wine. Realizing the expense involved, the watchman could expect that the scholar who entrusted him with the money would require it Saturday night to purchase wine for the mitzvah. Therefore, he was not required to take the trouble to bury the money when it would be possible that he would have to uncover it shortly afterwards.
The Ra’avad and the Ritva, however, differ and maintain that the pronoun refers to the watchman. The Shulchan Aruch (loc. cit.) quotes the interpretation of the Maggid Mishneh, while the Tur and the Ramah maintain that the same law applies if the watchman is a Torah scholar.

Bava Metzia 42b cites Deuteronomy 14:25: “And you shall bind the silver in your hand” as a source for this concept.

In this manner, it is held securely, it is visible, and the watchman’s hands are free. Although there is no verse that indicates that this is an effective way of carrying money, logic dictates that it is preferable to carrying it in one’s hand.

As mentioned in the notes on Halachah 3, we are talking about a situation where had the person held the money in his hand or tied it to his stomach, it would not have been lost. If, however, it would have been lost even in such a situation, he is not liable. (See Hagahot Maaimoniot.)

For this is a very unlikely place to place money. It is well hidden, and the probability that the thieves will look there are less.

For it is common practice for a person to entrust these people with anything that belongs to him or that he is caring for.

The Meiri states that this applies both to Hebrew and Canaanite servants. The Mordechai, however, explains that the reason is that slaves are generally thieves, which implies that the ruling applies only to Canaanite servants and not to Hebrew servants (Seifer Me’irat Einayim 291:33).

Regardless of his age, a slave is not considered to be responsible. A person would not entrust his own articles of value to his slave (Maggid Mishneh).

A watchman may, however, give the entrusted article to a business associate or a partner, even if the latter does not live together with him (Beit Yosef, Choshen Mishpat 291).

Hilchot Sechirut 1:4. Even if the second watchman is willing to take an oath that the article was destroyed and he was not negligent in its care, his oath is not accepted. The owner may claim: “I am willing to accept the word of the person to whom I entrusted the article, but not the word of another person.”
Rabbi Akiva Eiger questions - without offering a resolution - why the Rambam mentions slaves and minors - who are not acceptable because they are not responsible - together with other adults, who are not acceptable for the reason mentioned in the previous paragraph.

The Maggid Mishneh quotes the Ramban and the Rashba, who explain that this law applies only with regard to money or other articles that are uniform in nature. If, however, the articles could be recognized as belonging to a certain person, we assume that a member of a person’s household will realize whether or not an article is borrowed, and if it is, take the appropriate precautions. This ruling is also cited by the Ramah (Choshen Mishpat 291:23).

From Bava Metzia 42b, where this story is told, it is apparent that the watchman’s mother was dwelling with him and thus was considered a member of his household.

For she thought that it belonged to her son, who would like to use it in the near future.

And hence must be treated more seriously than his own property.

For with regard to the incident mentioned in the previous Halachah, Bava Metzia, loc. cit., states that the mother is not liable, because she did not know that the money had been entrusted to her son.

With regard to a married woman, since her husband is entrusted with the property she owns, her obligation to make restitution does not take effect until she is widowed or divorced.

Even if the other person does not have the means to pay, the original watchman is not liable (Maggid Mishneh). Rabbenu Asher and the Tur do not accept this principle and rule that the original watchman is liable in such a situation. Their rationale is that if this were not the ruling, whenever an entrusted article is given to a person, it will be consumed by his wife and children. Note the Ramah (Choshen Mishpat 291:24), who quotes both views.

I.e., his own hops, not those entrusted to him.

Although the Shulchan Aruch (Choshen Mishpat 291:25) quotes the Rambam’s opinion, it also mentions the minority opinion of Rabbenu Nissim, who rules that the watchman is liable, because he should have given explicit instructions to his attendant.

I.e., for the improvement the hops brought about within the flavor of the beer.

For he did not receive any benefit.

He is not even liable to take an oath. Note the contrast to the laws that apply to money designated for the Temple treasury (Hilchot Sechirut 2:2).

The Rambam’s wording can be interpreted to mean that this concept is not a verse that must be accepted arbitrarily as a decree of Torah law, but as a logical concept that can be comprehended because of the rationale that he proceeds to state.

There are no poor people or captives who can claim that the money was designated for them.

I.e., by using the money to save himself, he used it for precisely the purpose for which it was designated.
The commentaries question: This explanation is seemingly unnecessary, for as stated above, since this money was not designated for a particular poor person, the watchman is not liable if it was taken from him. Among the explanations given is that the money was not given to the person to use to redeem captives, but rather the money was collected for that purpose and given to the watchman for safekeeping until he could return it to the owner (Nimukei Yosefin the name of Rabbenu Asher).
When quoting this law, the Shulchan Aruch (Choshen Mishpat 292:9) states that the watchman is freed of liability only when he does not have any other money at his disposal when attacked. If he has his own money available, he must use those funds to redeem himself first.

And not for others (Kessef Mishneh).

I.e., the group of poor people or this group of captives for which it was set aside.

Even though it was not given to them, since it was designated for them, the watchman has a responsibility toward them.

I.e., to rob him of his own property without knowing whether he had been entrusted with anything else of value.

From Bava Kama 60b, it is obvious that one must make restitution to one’s colleague in such a situation.

I.e., they heard that the article or the money had been entrusted to the person and came to rob him of that article.

The Maggid Mishneh quotes the Rashba and compares this law to the laws pertaining to a moser (a person who enables gentiles to take possession of property belonging to a Jew, Hilchot ChaveZ UMazik 8:4). On that basis, he explains that this is speaking about a situation where the thief has the watchman under his control and there is nothing preventing him from searching his property until he finds the entrusted article. The Maggid Mishneh writes, however, that it appears that the Rambam does not follow this approach.

The Shulchan Aruch (Choshen Mishpat 291:8) states that an unpaid watchman is liable only if the other people would have volunteered to combat the thieves. He is not obligated to hire people for that purpose.

Note the parallel in Hilchot Sechirut 3:6.

Different laws apply, however, if the people who entrusted the money have also forgotten these particulars, and they cannot issue a claim against the watchman and he seeks to return the entrusted funds on his own volition. In such an instance, he has no legal obligation to return more than 100 zuz to each of the owners. If, however, he desires to remove all trace of wrongdoing, he has a moral and spiritual obligation (im rotzeh latzeit y’dei shamayim) to return 200 zuz to each of the owners [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 300:1)].

I.e., holding a sacred article, as stated in Hilchot To’en V’Nit’an 1:2.
Maggid Mishneh raises the following question: In Hilchot To’en V’Nit’an 4:9, the Rambam rules that when a plaintiff demands 100 zuz from a colleague and the defendant answers: “I know that I owe you 50, but I am unsure whether or not I owe you the other 50,” the plaintiff is allowed to expropriate the entire sum that he claims without taking an oath. Similarly, with regard to each of the claimants in the instance described in our halachah. The defendant is admitting a portion of their claim and stating that he is in doubt with regard to the other portion of the claim.
The Maggid Mishneh, however, differentiates between the two instances, explaining that we must view the case described in this halachah in its totality. The watchman is certain that no more than 300 zuz were deposited with him. That is the sum total of his obligations. Hence, although the court supports the plaintiffs’ claims because of the watchman’s negligence, it does grant the watchman a certain measure of protection and requires the plaintiffs to take an oath. In Hilchot To’en V’Nit’an, by contrast, the defendant is unsure of the scope of his obligations. Hence, he is not granted any measure of protection.

Writing down the name of the depositor on the packet is sufficient. We do not suspect that the contents of the packets were exchanged.

From the Rambam’s wording, it appears that if the claimants brought the money in separate packets, the watchman is required to recall the identity of the person who gave him each packet, even if they deposited the two packets with him at the same time. Rashi (Bava Metzia 37a), by contrast, maintains that as long as the two owners deposit the money at the same time, the watchman is not required to remember the identity of the person who deposited the larger sum.

He does not have even a moral and spiritual obligation to give either of the claimants more (Maggid Mishneh).

The Ramah (Choshen Mishpat 300:1) quotes the opinion of the Mordechai, who maintains that the additional 100 zuz should be deposited with the court for safekeeping.

This refers to the Talmudic expression “until Elijah comes” - i.e., in the era of Redemption, when he will settle all disputes with prophetic insight (Sefer Me’irat Einayim 300:7).

Or until they agree to divide the sum, as the Rambam mentions in the conclusion of the halachah (Seifer Me’irat Einayim 300:8). We do not suggest that they divide the sum, however, to prevent the person who issued the false claim from benefiting from his deceit.

And he suffers the loss of the difference in value.

Implied is that he sells the larger utensil so that he will be able to give the other claimant the worth of the smaller one. Rashi, by contrast, maintains that the larger utensil should be divided - if that is possible without rendering it worthless - and the portion equal to the value of the small utensil given to the claimant.

If neither of the owners comes to claim the article, the watchman does not have a legal obligation to return the money. The Maggid Mishneh maintains that he does have a moral and spiritual obligation to do so. The Tur [cited by the Ramah (Choshen Mishpat 300:3)] differs and maintains that in this instance, the watchman is under no obligation whatsoever.

For he was negligent in not remembering the identity of the depositor. As mentioned above, both claimants must take an oath before the watchman is required to make restitution (Seifer Me’irat Einayim 300:11).

Due to natural causes, in which instance the watchman is not liable.

Giving the animal to one of them and its value to the other.

This does not mean that the owners placed the animals in the shepherd's herd without his consent at all. For in such an instance, he would have no liability whatsoever. Instead, it is referring to a situation in which the owners deposited the animals after the shepherd agreed to accept responsibility for them, without showing the animals to him. (Sefer Me'irat Einayim 300:15).

I.e., in the hands of the court or of a trustworthy individual.

This halachah deals with the problem that when produce is kept over a lengthy period, there is always a measure destroyed by spoilage or eaten by rodents. For this reason, it is preferable that the produce of each person remain separate, so that it will be obvious how much spoilage each person's produce suffered.

Similarly, these laws apply if the owner gave the watchman permission to mix the produce with his own (Meiri).

Since the watchman claims that the produce spoiled - i.e., it was destroyed by forces beyond his control - like all watchmen, he must take an oath that the entrusted article was not destroyed due to his negligence (Maggid Mishneh). Seifer Me’irat Einayim 292:28 states that the oath is required only when the watchman claims that the spoilage exceeded the ordinary norms. If it is equivalent - or less - than those norms, an oath is not required.

And is thus incapable of calculating how much produce must be returned to the owner.

In his Commentary on the Mishnah (Bava Metzia 3:7), the Rambam writes that the measures he lists applied in Eretz Yisrael during the Talmudic era. In every place and in every country, an appropriate measure should be calculated. Significantly, however, he quotes these measures here [as does the Shulchan Aruch (Choshen Mishpat 292:11-13)] without making such a qualification.

There are 180 kabbim in a kor. Thus, we are assuming that 2 1/2 percent of the produce will rot.

There are 30 se’ah in a kor. Thus, the amount deducted is one tenth of the entire total. The commentaries explain that the intent is not that this amount of produce will spoil, but rather that, as the produce dries, the kernels will be separated from the chaff and the chaff will be blown away by the wind. If the owner entrusted kernels to the watchman, a very small amount should be deducted, because flax seed is sturdier than others and usually does not spoil (Maggid Mishneh).

When the produce is dried out by the arid summer air.

Because it absorbs the moisture from the air.

Because the wine will be absorbed by the barrels in which it is stored.

When olives are pressed for oil, a small portion of the skins and body of the fruit becomes mixed with the oil. Over time, they sink to the bottom of the container.

For they have already been removed.

And have already absorbed oil in previous years.

Because they will not absorb any more oil this year.

For there is no way of knowing how much produce was entrusted at the outset.
The Rambam’s wording implies that if the watchman was not at all negligent, and the produce was mixed together through no fault of his, he would not be liable.

As the Rambam proceeds to explain, the watchman is required to take an oath because he admits a portion of the plaintiff's claim. This oath is required by Scriptural Law. Hence, it is not sufficient for him to admit that he does not know the amount he is required to pay. Instead, he must either take the oath or pay the entire claim.
As will be explained, the Tur and others differ with the Rambam’s views with regard to the subsequent clauses of this halachah. They do not, however, register any objections to this ruling. For in this instance, the watchman caused the difficulty himself by mixing the produce together with his own before measuring it. Therefore, he is liable to suffer the consequences (see the gloss of the Maggid Mishneh on Halachah 7 and Seifer Me’irat Einayim 292:36).

The Ri MiGash.

Rabbenu Yitzchak Alfasi.

The article he claims is within his means, and it is not out of the question that he entrusted it to the watchman. If, however, a poor man claims to have entrusted an extremely valuable article, we do not accept his claim.

A ban of ostracism is issued without mentioning the plaintiffs name, applying to anyone who takes more than his due. The Geonim instituted this as a deterrent, hoping that it would intimidate the plaintiff and restrain him from issuing false claims.

For he admits that the purse contained dinarim. This admission makes him a modeh b’miktzat and obligates him to take an oath by Scriptural Law.

Because according to Scriptural Law, there is never an instance when a person takes an oath that he does not know whether or not he is liable.

See Hilchot To’en V’Nit’an 4:7, which speaks about an instance where a plaintiff claims that the defendant owes him 100 zuz. The defendant states, “I know that I owe you 50 zuz, but I don’t know whether I owe you the other 50 zuz.”
The Ra’avad takes issue with the Rambam’s ruling, explaining that there is a fundamental difference between the situation described in this Halachah and that described in Hilchot To’en V’Nit’an. In Hilchot To’en V’Nit’an, the defendant knew the sum that he was charged with at the outset. Hence, we accept the possibility that he is claiming that he did not know to avoid having to pay the full amount. In the instance described in this halachah, by contrast, the watchman never knew how much produce was entrusted to him, and he could be honestly claiming that he did not know. For that reason, the Ra’avad maintains, we grant the watchman a certain measure of protection and require the owner to take an oath before expropriating the money he claims to have deposited.
Rabbenu Asher and the Tur (Choshen Mishpat 90, 298) offer a third view: that in this instance, the watchman is allowed to take an oath that he does not know how much was entrusted to him, and then is freed of all obligations. The Shulchan Aruch (Choshen Mishpat 90:10) quotes both views without saying which one is favored. The Shulchan Aruch, however, makes reference to Choshen Mishpat 298:1, where he mentions the Rambam’s view without citing the differing opinions. Seifer Me’irat Einayim 298:1 questions the Shulchan Aruch’s ruling, noting that the Ra’avad, the Tur and the Rashba all differ with the Rambam. The Siftei Cohen 72:54 offers a lengthy explanation in support of the Rambam’s position.

See Chapter 6, Halachah 1.

Generally, a defendant is not required to take an oath unless a plaintiff has a definite claim (ta’anat beri). In this instance, an oath is required because of the principle of gilgul sh’vuah - i.e., once a person is required to take an oath to a plaintiff, he must also take an oath concerning any other claims he has against him (Seifer Me’irat Einayim 298:4).

He is not required to pay any more, because the plaintiff does not have a definite claim (a ta’anat beri) regarding the amount he thinks that the defendant owes.

Our translation is based on the usage of the term in Proverbs 25:12.

I.e., we consider his financial standing and his relationship with the watchman. See the parallel to Hilchot Chovel UMazik 7:18.

In contrast to the case described in Halachah 6 when he was not required to take an oath at all.

He is not considered to be a modeh b’miktzat, “one who admits a portion of the claim” for the reason stated by the Rambam. Hence, the principle mentioned in the notes on the previous halachah: “A person who is required to take an oath but cannot, must make restitution,” does not apply.

The Rambam is referring to Hilchot To’en V’Nit’an 3:8, where he explains that for a person to be considered to be modeh b’miktzat, his admission of responsibility must be with regard to the type of article claimed by the plaintiff. If, however, the plaintiff claims one type of article and the defendant admits to owing another, he is not considered a modeh b’miktzat. According to Scriptural Law he has no obligation to the plaintiff, and according to Rabbinic Law he is required to take merely a sh’vuat hesset, a lesser oath required by the Sages.
The Rambam’s ruling is based on the decision of his teacher, the Ri MiGash, who asks (see his Commentary on Sh’vuot 40b) why the plaintiff is given the opportunity of collecting the money he claims by taking an oath. Seemingly, the situation resembles one in which the plaintiff claims: “You owe me 100 zuz,” and the defendant states: “I don’t know.” In such an instance, the defendant is required to take ash’vuat hesse! that he does not know that he is liable, and then he is freed of responsibility (Hilchot To’en V’Nit’an 1:8).
The Ri MiGash answers that in contrast to the situation where the defendant does not does not know at all whether he is liable or not, in this instance the watchman knows that he is liable. Since he knows that he is liable, but does not know the extent of his liability, the owner is given the option of taking an oath and collecting the sum he claims.
In his Kessef Mishneh, Rav Yosef Karo questions the Rambam’s ruling, because in Hilchot To’en V’Nit’an, loc. cit., the Rambam rules that if a plaintiff claims that the defendant owes him wheat, and the defendant says, “I am not sure whether I owe you wheat or barley,” he is obligated to pay him the value of the barley. Based on that ruling, in this instance seemingly all that he should be required to pay is the value of the scrap metal.
The Bayit Chadash (Choshen Mishpat 88) makes a distinction between the two. In this instance, the watchman was negligent with regard to the article. Hence, it is considered as if he destroyed it intentionally, and more stringent rules apply.
The Siftei Cohen 90:16 offers a different resolution, explaining that our Sages strengthened the position of a person who entrusts an article to a colleague, and maintain that the laws applying to a person who had property stolen from him apply to him as well.
The Ra’avad interprets the entire passage differently, explaining that according to the Jerusalem Talmud (Bava Kama 2:7), the watchman should be considered a modeh b’miktzat and therefore considered to be liable for the entire amount. Nevertheless, the Ra’avad maintains that it appears that the Babylonian Talmud (Bava Kama 35b) does not accept this principle and would require that the plaintiff prove his claim.
The Maggid Mishneh states that the Ra’avad’s argument is based on the comparison between cases of damages and claims of debt. He states that it is possible to make a distinction between the two types of claims, but that Bava Kama, loc. cit., appears to consider them as alike. The Kessef Mishneh supports the Rambam’s ruling, explaining that the passage from Bava Kama can be considered to be a hypothetical argument, while in fact the distinction is acceptable. In his Shulchan Aruch (Choshen Mishpat 90:10), Rav Karo accepts the Rambam’ s ruling.