Rambam - 3 Chapters a Day

Moreover, even if the watchman has already paid for the article, he is required to take this oath (Rabbenu Asher; Siftei Cohen 295:1).

I.e., for the watchman to be absolved from the oath the Rambam mentions, the entrusted article must be characterized by two qualities: a) it must be a standard article and not unique, b) it must be easy to obtain and/or purchase (Seifer Me’irat Einayim 295:1).

In his Commentary on the Mishnah (Bava Metzia 3:10), the Rambam also mentions slabs of gold or silver.

There is no reason to suspect that the watchman will covet such an article and take it for himself, for he could just as easily go to the market place and purchase one. The distinction between this clause and the clause that follows is derived from Sh’vuot 6:7. Note the Rambam’ s commentary on that mishnah.

We do not suspect the watchman would steal the article outright. Instead, he desires to pay for it. But since the article is not easy to purchase, there is no way he can purchase it in a store. Hence, he desires to withhold the article from its owner, tell him that it is lost, and pay him.

Needless to say, this oath must also be taken by a watchman who seeks to be absolved of liability, as the Rambam states in the following clause.

Based on the principle of gilgul sh’vuah.

I.e., who desires to absolve himself of responsibility by taking an oath.

See Chapter 4, Halachah 1.

I.e., he was not negligent. See Chapter 4, which outlines the manner appropriate for guarding different types of articles.

If he used the article for his own purposes, even if he later returned it to the place where he kept it, he is considered to be a thief and is liable for the article if it was destroyed by forces beyond his control. See Hilchot Gezeilah 3:11, where this concept is explained at length.

Bava Metzia 94a explains that this follows the principle: “Every stipulation made with regard to financial matters [and accepted by both parties] is binding.” See Hilchot Sechirut 2:9.)

Chapter 4, Halachah 4, states that money should be safeguarded by burying it in the ground. Thus, anything less would be considered negligence. Nevertheless, since the watchman made this stipulation at the outset, he is not held liable if the money is lost or stolen.

Even if the witnesses testify that they did not hear the stipulation, the watchman is not held liable, for the reason the Rambam explains.

Provided that he takes a Scriptural oath. Such an oath is necessary (in contrast to the instance described in Hilchot Sechirut 2:11) because the watchman admits accepting the entrusted article (Kessef Mishneh).

This is an expression of the principle of miggo - i.e., had the person desired to free himself of responsibility by lying, he could have told a more effective lie. Instead of mentioning the stipulation, he could have claimed that he took proper care of the article and yet it was destroyed by forces beyond his control.
The Ra’avad objects to the Rambam’s ruling when there are witnesses who testify that they did not hear a stipulation being made. He explains that the principle of miggo does not override the testimony of witnesses. The Maggid Mishneh [and more explicitly, the Kessef Mishneh] explain that we are not speaking about a situation in which the witnesses categorically say that a stipulation was not made, for then the objection lodged by the Ra’avad would apply. Instead, this refers to a situation where the witnesses say that they did not hear a stipulation, but admit the possibility that one could have been made.

I.e., witnesses who testify that he guarded the article properly.

This ruling appears to indicate that the primary oath the Torah requires of a watchman is to state that he guarded the entrusted article in the appropriate manner. The other oaths mentioned by the Rambam in Halachah 1 are included only on the basis of gilgul sh’vuah. The Maggid Mishneh notes that in Chapter 4, Halachah 1, the Rambam states that the primary oath a watchman must take is that the article was destroyed in a manner for which he is not liable. Even the oath that he was not negligent is included only because of the principle of gilgul sh’vuah.
On that basis, the Maggid Mishneh explains that the intent here is that the watchman must bring witnesses who testify that the object was stolen and that the theft was not a result of the watchman’s negligence. The Ramah (Choshen Mishpat 294:2) writes that if there are witnesses that the article was stolen, the watchman must still take an oath that he was not negligent. If, by contrast, there are witnesses that he was not negligent, he is not required to take any oath at all. From the Ramah’s wording, it is not clear whether or not he accepts the interpretation of the Maggid Mishneh.

I.e., witnesses who testify accordingly.

Since there are witnesses who saw that the watchman was negligent in his care of the article, the watchman’s word would not be accepted if he claimed that the article was destroyed by forces beyond his control. Hence, the principle of miggo no longer applies, and the watchman is held liable. The Maggid Mishneh explains that this ruling applies only when the witnesses know that the watchman was serving in that capacity. If that is not the case, the watchman’s word is accepted, based on the principle of miggo. He could have claimed that he was not a watchman at all. Hence, if he claims that he was a watchman, but he made a stipulation not to guard the article in a manner fit for watchman, he is not held liable.
The Ra’avad questions the Rambam’s ruling, stating that it is possible that the defendant never accepted the responsibilities of a watchman, but instead told the owner: “My house is before you, place the article wherever you desire.” (See Hilchot Sechirut 2:8.) The Kessef Mishneh explains that this halachah is a continuation of the previous one, emphasizing that in such an instance the principle of miggo does not apply.

If, however, the entrusted article is not present before us, the watchman’s claim is accepted, based on the principle of miggo. Had he desired to lie, he could have claimed that he already returned the article (Maggid Mishneh).

These claims are not considered to be of substantial probability. They would only be accepted on the basis of the principle of miggo - i.e., had witnesses not observed the deposit of the entrusted article, the watchman could have claimed that it was never entrusted to him. And since, he had the potential to make that claim, we also would have accepted his word, had he claimed it was sold to him. When, however, witnesses observed the deposit of the article, the principle of miggo no longer applies and none of these claims are accepted.

I.e., his heirs.

The court does not consider the possibility that the object was purchased by the deceased before his passing. Since such a claim would not have been accepted if made by the deceased himself, we do not advance it on behalf of his heirs.

Who does not know whether the property found in the possession of the deceased belonged to him or not. Note Seifer Me’irat Einayim 297:3, which states that if the heirs claim that they know that the article being claimed belonged to the deceased, it is not expropriated from their possession.

I.e., the deceased was not wealthy enough to have owned such an article himself.

This decision depends on the judgment of the judges; there are no cut and dry rules governing the matter.

When visiting the deceased, he saw the article frequently and hence was able to describe its identifying characteristics.

Hilchot Sanhedrin 24:1. Note, however, the Rambam’s statements in Halachah 2 of that chapter [quoted by the Shulchan Aruch (Choshen Mishpat 297:1)], that at present when there are questions with regard to both the integrity and the sagacity of our courts of law, the judges’ judgment is not sufficient to have an article expropriated from heirs.

I.e., he was able to pinpoint the exact measure of sesame seeds in the jug. Although the measurements of an article are considered to be simanim muvhakim, identifying characteristics of precise accuracy with regard to the return of a lost article (Hilchot Gezelah Va’Avedah 5:13), they are of no consequence in this instance.

If, however, the witnesses could somehow identify the produce as belonging to the plaintiff, it is expropriated from the defendant and given to him.

Hilchot Sechirut 2:12. In both instances, the watchman is given the chance to take an oath to support his claim, because of the principle of miggo. If he had desired to lie, he could have claimed that the entrusted article was destroyed by forces beyond his control.
The Ra’avad questions why the watchman is required to take an oath while holding a sacred object, and not merely a sh’vuat hesset. We follow the principle (see Hilchot To’en V’Nit’an 9:2): A person who entrusts an article in the presence of witnesses is not required to return it in the presence of witnesses, Hence, seemingly, there is no difference between this instance and an ordinary case in which a plaintiff denies a claim made against him.
The Maggid Mishneh supports the Ra’avad’s thesis, although he explains that the fact that the plaintiff can cite identifying characteristics is sufficient reason to warrant the more severe oath. In his Kessef Mishneh (in his notes on Hilchot Sechirut 2:11), Rav Yosef Karo explains that since the defendant admits accepting responsibility as a watchman for the object, he is required to take a severe oath. Although he is freed from the obligation of a Scriptural oath, he must take a severe Rabbinic oath. Nevertheless, in his Shulchan Aruch (Choshen Mishpat 297:1), Rav Karo appears to support the Ra’avad’s opinion, for he does not mention the concept of an oath at all. See also the Siftei Cohen 297:1, which provides a lengthy analysis of the issues involved.

If the plaintiff had claimed 100 and the defendant admitted 50, the defendant would be required to take a Scriptural oath, for he is admitting to a portion of the plaintiff’s claim. In this instance, however, he is not making any admission, but he is giving him the produce. This resembles the claims that are referred to as heilech; see Hilchot To’en V’Nit’an 1:3.

The Ramban and the Rashba differ with the Rambam on this point. They maintain that since an entrusted article is always considered to be in the possession of its owner, it is always considered to be heilech, and an oath is never required of a watchman (Seifer Me’irat Einayim 296:6). The Rambam’s opinion is quoted by the Shulchan Aruch (Choshen Mishpat 296:4).

As mentioned in Hilchot To’en V’Nit’an 3:8, to be required to take a Scriptural oath, a person must admit to the type of article claimed by the plaintiff. If, however, the plaintiff claims wheat and the defendant admits owing barley, the defendant is not required to take a Scriptural oath.

Compare to Hilchot Gezelah Va’Avedah 13:16, which states that when caring for a lost article, different rules apply and the produce should be sold.

See Chapter 5, Halachah 5, which mentions the norms for the loss of produce due to spoilage and being eaten by rodents.
The Ramban states that it is not necessary to wait an entire year to see how much produce is being lost due to spoilage. Instead, one should check the produce in the midst of the year, and if it has already lost as much produce as would normally be lost within a year, it should be sold. The Maggid Mishneh explains that the Rambam’s words can also be interpreted in this manner.

Our translation follows the interpretation of the Ramban. The Tur (Choshen Mishpat 292) states: “One may sell the produce.”

In this way, the amount of produce the watchman sold will be recorded, and it will be affirmed that he received an appropriate price for it.

He is saving the owner’s property, for otherwise a significant amount of the produce would spoil or be eaten by rodents. It is as if that produce was lost and he is returning its value to its owner.

The Ra’avad clarifies that in the present era, in the lands where the laws of terumah are not observed, the entrusted produce may be sold to anyone.
The Maggid Mishneh states that this law applies only when the person who entrusted the produce is not in the city. If he is present, he should be notified that his produce is spoiling; it should not be sold without his consent. Both these concepts are reflected in the statement of the law in the Shulchan Aruch (Choshen Mishpat 292:15).
In the present era, when the concept of a global village is a functional reality, it is ease of communication and not geographic distance that is significant.

Terumah refers to the heave offering, which must be separated from produce and given to the priests. There are several restrictions regarding its consumption, including the requirement that it may be eaten only in a state of ritual purity. For this reason, and because it may be consumed only by priests, it is less desired than ordinary produce, and hence commands a lower price.

The portion from the tithe given to the Levites that must be separated and given to the priests, and treated with all the strictures that govern terumah.

We suspect that on his journey, the owner of the produce decided to declare the produce that he entrusted as Terumah (or Terumat Ma’aser) for other produce that he owned. Since the entrusted produce was not readily available to him, he decided to derive some benefit from it by designating it as Terumah rather than produce that he and/or his family were using.

E. g., all the produce spoiled; alternatively, the loss was contained and no more would spoil.

Because of the rancid produce. Thus, it is still to the owner’s benefit that the produce be sold.

I.e., at the beginning of the fifth hour, ten o’clock on a day when sunrise and sunset are at 6:00 AM and PM respectively.

For after that time, eleven o’clock, it is forbidden for the owner to benefit from the leaven, and it would be of no value to him whatsoever.

For if it applies to leaven that unquestionably will become forbidden, it certainly applies to other entrusted objects when the loss is not a clear-cut matter.

I.e., sell them. As the Rambam states in the following halachot, a watchman may touch an article while caring for it.

The intent is that the watchman should not sell the entrusted article in advance. If, however, the time of the loss is directly imminent, the object should be sold, for this is a favor for the owner (Sefer Me'irat Einayim 292:40).

To air it out, so that it does not become moldy. The commentaries note that in Hilchot Gezelah Va’Avedah 13:13, the Rambam writes that a person who finds scrolls should roll them once every 30 days. The Tur and the Siftei Cohen 292:34 maintain that the same law applies with regard to a scroll that is entrusted.
The Siftei Cohen also explains the rationale for the difference in the Rambam’s rulings. Since the owner entrusted the article to the watchman without specifying how he must care for it, we assume that airing it out once a year is sufficient. With regard to a lost article, by contrast, we should care for the article in the best way possible.

Despite the fact that it is a mitzvah to study the Torah, the watchman is not allowed to make use of another person’s scroll for that purpose.
The Hagahot Maimoniot state that the Rambam’s ruling applies only when the watchman is an unlearned person, incapable of studying. If, however, the watchman is capable of studying the entrusted text, he is allowed to study from it and may even copy it. In his Beit Yosef (Choshen Mishpat 292), Rav Yosef Karo explains the rationale for this view: Since the owner knew that watchman was a Torah scholar, implicit in giving it to him to watch was the permission to study from it. In his Shulchan Aruch (Choshen Mishpat 292:20), however, he merely quotes the Rambam’s ruling. The Ramah cites the decision of the Hagahot Maimoniot.

I.e., the watchman must do whatever he can to prevent the object from being ruined. By mentioning this general principle, the Rambam implies that the Jaws stated in Hilchot Gezeilah Va’Avedah, Chapter 13, will apply in these circumstances as well.

And cannot tend to the entrusted object himself.

Seifer Me’irat Einayim 292:46 notes that the Tur (Choshen Mishpat 292) uses the term medinah, which in the Talmud and in works of halachah has the meaning “city.” Seifer Me’irat Einayim questions how much trouble the watchman must undertake to notify the owner. Today, however, with the communications revolution, it does not matter whether the owner is in the same city or overseas - the question is: Is there a way of notifying him of the difficulty with his entrusted object?

Instead, he should notify the owner of the difficulty.

The rationale is that since the person is capable of tending to his article himself and fails to do so, the watchman is not obligated to extend himself to do so.

I.e., people might think that the watchman is not paying the true worth of the article.

This license is not explicitly mentioned in the Talmud. Nevertheless, the Rambam derives this from the law cited in the following halachah (Maggid Mishneh).

If, however, he does make use of them, he is liable even if they are lost because of factors beyond his control, as indicated by Halachah 7.
The Maggid Mishneh notes that in Hilchot Gezelah Va’Avedah 13:17, the Rambam rules that a person who sells a lost object is considered to be a borrower with regard to the money, and is liable when it is lost by factors beyond his control, even if he did not actually use that money. The Maggid Mishneh explains that a person who takes care of a lost article is considered to be a paid watchman. Therefore, when the article is sold, his responsibilities increase by one more level. In our halachah, however, we are speaking about an unpaid watchman. Because the article is sold, his responsibilities are increased one level, making him a paid watchman.

For the fact that the bag was sealed or tied in an unordinary manner indicates that the owner did not desire that the money be used.

Since he has no benefit from the use of the money, he is considered like any other unpaid watchman.

As long as the bag is not bound in a special manner, closing the bag is no indication that the person does not desire that the money be used. Most people carry their purses closed.

Entrusting money to such people without closing the bag in a manner that indicates that one does not desire it opened is tantamount to giving them explicit permission to use the article. For it is well known that these individuals are in frequent need of cash.

The right to use the money - even before he actually uses it - causes him to be placed in this category.

Even if the money was destroyed by forces beyond the borrower’s control.

For a housekeeper does not necessarily have an immediate need of money, and entrusting money to him is not considered to be granting him permission to use it. When quoting this law, the Shulchan Aruch (Choshen Mishpat 292:7), adds that if the householder supports himself by lending money at interest, he is considered like a storekeeper, and he may use money entrusted to him.

Chapter 4, Halachah 4.

Seifer Me’irat Einayim 294:11 states that this law applies even when the watchman moves the jug in order to take a ladder that is stored behind it. Since he is moving the jug for his own purposes, he becomes responsible for it.

Since he moved the jug for his own purposes, he is considered as having misappropriated it (shole'ach yad). Hence, he is liable even if the jug was destroyed by forces beyond his control.

Since he is considered to have misappropriated the article, he is liable until he informs the owner that he has returned it. Putting it back in its place is not sufficient. This is the opinion of Rabbi Akiva (Bava Metzia 41a).

The Tur and the Ramah (Choshen Mishpat 292:6, as interpreted by the Siftei Cohen) state that if the article is destroyed due to negligence, the watchman is liable. Similarly, if the article is destroyed because the watchman moved the article from the place that the owner designated and placed it in a different place, the watchman is liable.

We fear that the article was taken from the husband without his knowledge, and we do not desire to assist the perpetrators of iniquity. If no one will accept the article for safekeeping, there is a greater probability that it will be returned to its owner (Maggid Mishneh).

For we fear that the article was taken from the master or parent without their knowledge.
The Maggid Mishneh defines a child as below the age of six.

Note Hilchot Ishut 22:32, where the Rambam uses the expression: “If he transgressed and accepted an entrusted article from a woman.”

Our translation follows the opinion of the Ri MiGash (the Rambam’s teacher), who maintains that the article should be returned to the woman and not to her husband. The Rashba, however, differs and maintains that the intent is that the watchman may return the article either to the woman or to her husband.

Although everything that a woman acquires belongs to her husband, it is possible that someone else entrusted an article to her for safekeeping, and she is required to return it to him (Maggid Mishneh). Alternatively, it was possible that she was given an article on the condition that it not be given to her husband, but rather she be allowed to do what she wants with it.
The Rivash (Responsum 50) states that even if the watchman knows that the entrusted article belongs to the woman’s husband, he should return it to the woman, because he received it from her. The Tashbetz (Vol. I, Responsum 59) differs and maintains that the article should be returned to the husband. Both views try to support their arguments based on the Rambam’s ruling in Hilchot Malveh V’Loveh 2:8.

Because even if it was not his at the outset, he inherits her property. If it was an article entrusted to her by others, they should demand it from her husband.

Because, as in the case of a married woman, it is possible that the article was entrusted to the servant for safekeeping or given to him as a present on the condition that it not become his master’s property.

Because we assume that it was property taken from his master. As long as the servant is alive, we assume that the master must take whatever steps necessary to retrieve his property from his servant. Once the servant dies, however, rather than consider the entrusted object to be the property of a convert who passes away without heirs (see Hilchot Zechiyah UMatanah 2:1), we assume that it was stolen from the master and require that it be returned to him.

We do not return the object to the child himself, for we fear that he will lose the object or cause it to be destroyed. Instead, we purchase objects of significant and lasting worth.

I.e., if the watchman believes that they are telling the truth and not merely trying to avoid the property's passing into the domain of the heir.
The Tur (Even HaEzer 86) states that this reservation applies only at the time of the person’s death, for if the watchman returned it to that person, he or she would not necessarily be able to give it to the person he desired. If that person is healthy, the watchman should heed his instructions regardless. For he is otherwise required to give it to that person, and that person can just as easily give it to the person he desires.

I.e., if he believes that the person is merely attempting to perpetrate deception and prevent the article from being given to the heirs, he should not allow such fraud and should give the article to the heirs.

The rationale for this ruling is straightforward. Any time a person must transport an article from place to place, he is exposing the article to the danger of being broken or stolen in transit. Therefore, the watchman is not required to bring the article to the owner in another place, lest it be destroyed during the journey. This is not the case with regard to a loan. If the lender knows the borrower has money with him, he can require him to pay the loan. A watchman, by contrast, is not required to reimburse the owner for an entrusted object even if he has money at his disposal (Seifer Me’irat Einayim, Siftei Cohen 293:1).

I.e., even if the owner of the article and the watchman are in Nov, the owner cannot require the watchman to return his article to him there.

The owner cannot tell the watchman: “I gave it to you in Jerusalem, you must return it to me there.” The Shulchan Aruch (Choshen Mishpat 293:1) states that even if the watchman compels the owner to accept the article, he is freed of his responsibility.
In his commentary on this halachah, the Maggid Mishneh adds two points:
a) the place where the watchman desires to return the article must be secure. He cannot demand that the owner accept it in a dangerous place.
b) If the owner had stipulated that the watchman take care of the article for a specific amount of time, the watchman must maintain possession throughout the duration of that period.
Both of these points are accepted as binding law by the Shulchan Aruch (Choshen Mishpat 293:1-2).

A desert is a dangerous place where the article may be stolen or destroyed. Since the watchman was the one who brought the article there, he must accept responsibility for it until it is brought to a settled land.

This ruling was ordained as a measure of protection for the owner. Hence, if the owner desires that the entrusted object be returned to him in the desert, the watchman is required to do so (Rambam’s Commentary on the Mishnah, Bava Kama 10:7).

The watchman’s responsibility for his own interests takes precedence over his responsibility for the entrusted article, and he is allowed to undertake the journey.

The Ramah (Choshen Mishpat 293:3) quotes a view that states that if the owner has no way of entrusting the article to someone for safekeeping and takes it with him on his journey, he is not liable if it destroyed or stolen.

The first watchman should not entrust the object to another person himself, because the person he chooses may not be acceptable to the owner of the article.

I.e., by entrusting it to another person, the court is taking precautions that the article will not be lost or stolen. Taking these precautions is tantamount to returning a lost article, for otherwise the entrusted article will be destroyed.

Serving as an unpaid watchman.

In which instance the watchman is not liable, provided he takes the oaths mentioned in Chapter 6, Halachah 1.

In his Commentary on the Mishnah (Bava Metzia 3:1), the Rambam emphasizes that the watchman’s statement must be made in court. Any statement made out of court is of no significance.

Implied is that even if the watchman does not actually pay, as long as he promises to do so, he acquires the right to certain profits that come because of the article.
Rabbenu Asher differs and maintains that to acquire the right to these profits, the watchman must actually take the required oaths. His opinion is quoted by his son, the Tur (Choshen Mishpat 295) and supported by Seifer Me’irat Einayim 295:6. The Beit Yosef and the Siftei Cohen 295:3 support the Rambam’s view.
See also the Siftei Cohen 295:4, which explains that even if a watchman actually paid, if he did not do so until he was compelled to by the court, he does not acquire the rights to the profit. See Halachah 3.

Because of the severity of the prohibition against taking a false oath. Frequently, a watchman would prefer to make restitution for the article rather than take an oath that he was not negligent although he had in fact cared dutifully for the article.

See Exodus 22:6, Hilchot Genevah 1:6.

I.e., if he stole a sheep or an ox as explained in Exodus 21:37, Hilchot Genevah 1:4,6.

Bava Metzia 33b asks: Through what legal process does the watchman attain the right to the article? It explains that implicit in the agreement made between the owner and the watchman at the time the article is transferred is that if the article is stolen and the watchman desires to pay, he acquires the right to the double payment. Thus, the original transfer of the article formalizes this agreement as well.
Note Rashi, who explains that the owner is willing to part with the possibility of receiving the double payment in return for the security of knowing that his principal will be preserved.

I.e., even if he has not paid for the article, as long as he made the commitment to do so, he is granted certain rights with regard to the article.

This includes an increase in the value of the article as stated in Halachah 3.

Hilchot Genevah 1:11.
The Maggid Mishneh states that from the Rambam’s wording, it appears that even shearings and offspring that originated in the domain of the thief - e.g., the animal was not pregnant beforehand and became impregnated in the thief’s domain - must be returned to the owner. He states that other Rishonim differ with the Rambam regarding this point, and explains that this difference of opinion depends on the interpretation of Bava Metzia, loc. cit. There are two versions of an opinion stated by Ravva. The Rambam follows one version and the other authorities, the other.

By armed thieves or the like.

Even if he did not say that he would pay, by saying he was negligent, he obligated himself to do so.

And taken an oath to that effect.

I.e., he actually pays; it is not sufficient to promise. Since the entire benefit from the use of the article is the borrower's, he does not acquire the rights to the double payment until he actually pays (Maggid Mishneh).

And not when he is required to do so by the court.

The Ra’avad states that this law applies only to an increase in value that occurred after the watchman paid or at least agreed to pay. The Maggid Mishneh states that the watchman receives the increase in value from the time the article was stolen, and perhaps even from the time it was entrusted. He draws support from the Rambam’s ruling in Hilchot Genevah 1:14. The Siftei Cohen 295:7, however, reconciles the Ra’avad’s interpretation with the Rambam’s wording.

The Maggid Mishneh cites Hilchot Malveh V’Loveh 22:16, which states that a debtor may redeem landed property expropriated from him by the court. Implied is that movable property cannot be redeemed, and the person who had it expropriated may maintain possession if he desires. Accordingly, there are authorities who maintain that the law stated by the Rambam applies only when the entrusted article was - unbeknownst to him - in the watchman’s domain the entire time. Hence, his property was expropriated in error, and therefore it should be returned to him.
If, however, the entrusted object was lost or stolen, the expropriation was performed according to law. Hence, even if the entrusted article was discovered, movable property that was expropriated need not be returned. The Ramban - and the Maggid Mishneh states that this is also the opinion of the Rambam - differs and maintains that in this instance, other rules apply and any property that is expropriated from the watchman - whether landed property or movable property - should be returned to him.

E. g., an unpaid watchman took an oath that the article was stolen, and not as a result of his negligence.

I.e., he went beyond the measure of the law.

For his later commitment is binding.

If the commitment to pay was made outside the court, the watchman has the right to retract. The doubt arises if he made the commitment in court. Although his retraction is of no consequence, since the owner may have to take the matter to court to enforce this, it is questionable whether the watchman retains the right to the double payment.

His heirs.

We are not certain whether in fact they are refusing to pay - in which case, they would give up their rights to the double payment - or they are merely procrastinating and trying to postpone having to make restitution.

The unresolved question is whether the sons’ payment is sufficient to acquire the rights to the double payment on their behalf.

Here, as in the previous note, the question is whether the sons’ payment is sufficient to acquire the rights. Their position is strengthened by the fact that the original owner died.

He agreed to pay only half the sum. The question is whether he acquires the right to half the double payment.

This situation reflects the same logic as the previous instance, with one further benefit on behalf of the watchman. For in this instance, he paid for an entire cow. Hence, one might think that he deserves the double payment for that cow.

This also reflects a similar question: Since the watchman paid the entire portion owed to that partner, does he acquire that partner’s share of the double payment or not?

Since he paid his entire share, one might think that he has acquired the right to his portion of the double payment.

The Maggid Mishneh quotes Tosafot, Bava Metzia 34b, as explaining that this and the following instance refer to a situation where the woman lent - or borrowed - an article before she married.

Since the husband has the right to make use of his wife’s property, he is an involved party. Nevertheless, there is a question of whether the woman would be willing to grant the watchman the right to the double payment if he pays her husband and not her herself (Maggid Mishneh).

The question is whether the husband’s right to use his wife’s property is sufficient for him to acquire the rights to the double payment when he makes restitution on her behalf.

The double payment.

But rather in the possession of the thief. If the money were in the hands of either of the claimants, we would follow the principle: When a person desires to expropriate property from a colleague, the burden of proof is on him.
The Rambam’s ruling is based on that of Rabbenu Yitzchak Alfasi. Rabbenu Asher takes a different approach and maintains that the entrusted article is always considered as being in the possession of its owner. Hence, unless the watchman can prove that this principle should not be followed, he is entitled to the double payment.

Even though he had no right to seize possession of the article, once he has done so, we follow the principle: When a person desires to expropriate property from a colleague, the burden of proof is on him. Since the other claimant cannot prove that the money belongs to him - because there is an unresolved doubt regarding the matter - it is allowed to remain in the possession of the person who seized it.

The double payment is a k’nas, a fine, and laws involving fines are not adjudicated in the diaspora. Nevertheless, if either of the claimants seizes the double payment from the thief, it is not expropriated from his possession. (The commentaries have noted that the term “even if’ is somewhat out of context. For the question in this instance does not involve the dispute between the owner and the watchman, but between either of them and the thief.)

We are speaking about an armed thief. Hence, this is considered to be a matter beyond the watchman’s control. Nevertheless, this thief breaks into the owner’s domain in concealment rather than challenging him in open confrontation. Hence, he is considered a ganav, a thief, and liable for double payment, rather than a gazlan, robber, who is required to pay only an extra fifth. See Hilchot Genevah 4:4.

I.e., it is the watchman's obligation to take the matter to court and sue the thief so that the article or its value is returned to its owner. This is part of the responsibility that he undertook as a watchman.
Rashi (Bava Kama 108b) states that the watchman must pay the owner himself and then be reimbursed by suing the thief. His position is accepted by the Tur, but the Shulchan Aruch (Choshen Mishpat 294:5) quotes the Rambam’ s words. The difference is that according to Rashi, if the watchman cannot expropriate the value of the article from the thief, he must bear the loss himself (Seifer Me’irat Einayim 294:7).

Once the thief’s identity is discovered, there is no point in the watchman taking an oath.

Since he has taken the oath, he is no longer responsible to the owner, and the owner must undertake the legal process necessary to secure the return of his article.

The commentaries question why the watchman would want to undertake the difficulty of suing the thief. He will gain no profit from this endeavor, nor is he obligated to do so. Among the answers given is that he is concerned with the benefit of the owner, and as a mitzvah, he is willing to undergo some difficulty to help him retrieve his money (Bayit Chadash, Choshen Mishpat 294).

He must initiate and carry on with the legal process necessary to make sure that the entrusted article is returned to its owner. Since he received wages for his efforts and - at the present time - it is possible to retrieve the article for its owner, he is obligated to do so.

Since the question is left unresolved by our Sages (Bava Kama 108b), we follow the principle: “When a person desires to expropriate property from a colleague, the burden of proof is on him.” Since the plaintiff (the owner) cannot prove that the halachah follows his position, the article is not expropriated from the defendant (the watchman). If, however, the owner seizes possession of the animal’s carcass or its worth, it is the watchman who must prove that he has a right to the article.
The Tur does not accept this perspective and states that once the matter is brought to court and the watchman released from the obligation to pay, if the owner seizes the value of the article from him, he must make restitution.