Rambam - 1 Chapter a Day

I.e., an unpaid watchman, who is not held liable if the entrusted article was lost or stolen (Hilchot She’ilah UFikadon 4:1).

For the watchman is not absolved of liability until such an oath is taken (ibid.).

By taking the oath, he freed himself of the responsibility to return the entrusted article, and he is keeping it as his own.

If he slaughtered or sold the animal before he took the false oath, he is not liable for the additional payment, as reflected in the following halachah (Maggid Mishneh).

Although a person is liable to bring a guilt offering after taking a false oath, this is only when he admits lying himself, and not when his oath is discredited by the testimony of others. Rashi, Bava Kama 108b derives this from Numbers 5:7: “And they shall admit their guilt.”

Numbers, ibid., requires a person who misappropriates property via a false oath to pay a surcharge equal to one fifth of the new total. He is, however, liable for this surcharge only when he is obligated to bring a guilt offering.

Until the watchman takes a false oath, we do not assume that he is trying to steal from his colleague. It is possible that he misplaced the article, and is just stalling to delay being called to account.

The misappropriation of an entrusted article, sh’lichat yad, is considered equivalent to gezelah, robbery. From the time a watchman lifts up the entrusted article with the intent of using it for his own purposes, he is considered to have misappropriated it.

Note the Ra’avad and Rabbenu Asher [cited by the Tur (Choshen Mishpat 352)], who differ and maintain that he is liable for the double payment.

At the time he misappropriated the entrusted article, he became liable to return it to its owner, even if it was destroyed by forces beyond his control. As such, he is not considered to have stolen the article by taking a false oath (which warrants a double payment), because he became responsible for it beforehand (Rashi, Bava Kama 107b).

And yet the watchman is not liable for a double payment for this false oath, because the Torah obligated a double payment only when one claimed that the entrusted article was stolen.

See Hilchot Gezelah Va’Avedah 13:10, which explains that he is granted this status because throughout the time he is caring for the lost article, he is considered “occupied with a mitzvah” and is therefore not obligated to fulfill several other positive commandments.

The Rambam is speaking of an instance where the person took the second oath in a different court, which was not aware that he had taken a false oath previously. For once a person takes a false oath, he is not allowed to take an oath again until he repents (Maggid Mishneh).

One might think that one would be liable for a double payment only once for every stolen article. Therefore, Bava Kama 108a and the Rambam feel it necessary to clarify this law.

The oath that the article was lost. Although ordinarily he would have to pay such a surcharge if he admits taking a false oath regarding an entrusted article, in this instance he is not held liable, for the reason explained by the Rambam.
As explained on several occasions, the meaning of “an additional fifth” is one-fifth of the new total, 25% of the original amount.

Implied is that the partner who did not admit the theft is not required to pay the double payment. The Rambam’s rationale follows that of the preceding law, which states that a person is not obligated to pay both a double payment and an additional fifth for the same claim. Bava Kama 08 ו a develops this concept and asks what is the law when, as in the case at hand, there is a need for the payment of both an additional fifth and a double payment regarding the same suit. The Rambam interprets the Talmud as leaving the question unresolved, and therefore rules that the partner whose oath was refuted is not obligated for the double payment, but if it is taken from him by the owner of the stolen property, the latter is entitled to maintain possession.
The Ra’avad differs with the Rambam, as stated in the notes on Hilchot Nizkei Mammon 2:12, and maintains that in all such cases, if property is seized from its legal owner, it must be returned.
The Tur (Choshen Mishpat 352) offers a different interpretation of the passage in Bava Kama, from which it appears that there is no question regarding the partner’s liability for the double payment. The Talmud’s question concerns the other partner’s liability for the 25% surcharge. Note the Kessef Mishneh’s reconciliation of the Rambam’s interpretation.

And thus freed himself from responsibility.

Once the thief admitted his guilt to the watchman, he is liable for the principal and is therefore not liable for the double payment. The fact that he later denied his obligation to the owner is not of consequence.

E. g., he swore that the article was stolen from him by armed thieves (a situation that is considered beyond his control), and it was not.

Bava Kama 108b questions whether or not taking the false oath causes the watchman to cease being considered the agent of the owner. If he were not considered the owner’s agent, the thief’s admission of guilt to him would have no weight, and the thief would be liable for the double payment.
The Tur (loc. cit.) notes that according to Rashi’s reading of this passage, the thief is liable for the double payment.

Instead of freeing himself of responsibility by taking an oath that it was stolen.

See Hilchot She’ilah UFikadon 8:1.

According to the Rambam’s understanding of Bava Kama, ibid., this question is also left unresolved by our Sages. For we are unsure if the watchman considers the owner to be his agent or not.

With regard to the obligation to take an oath regarding an article entrusted by a minor, see Hilchot Sechirut 2:7.

Implied is that in order for the thief to be required to make the double payment (as stated in the continuation of the verse), the person who entrusts the utensils must be a “man” - i.e., above majority.

A silver coin of the Talmudic era equal to 19.2 grams of pure silver.

Even if they are lost or destroyed by forces beyond his control. Although the Shulchan Aruch (Choshen Mishpat 365:3) does not quote the laws regarding payment of twice the amount of the stolen article, because these are not relevant at the time the Shulchan Aruch was written, it does mention this law, because it clarifies the extent of the responsibility of the watchman.

The Rambam appears to be stating that as long as the watchman has not notified the owner of the return of the stolen article, he is still considered a thief, and the money is considered outstanding. Therefore, if witnesses testify regarding the theft, he is liable to pay twice the sum of the stolen article. See the Or Sameach.
The Ra’avad differs with the Rambam, maintaining that the watchman is considered a thief only when he takes a false oath regarding the stolen property.
The Ra’avad also adds that if the watchman returned the wallet to its owner together with the stolen money, and the owner counted the money, the money is considered to have been returned.

In contrast to a watchman, an ordinary person has no responsibility to the owner. Therefore, the obligations governing its return are more lenient.

The Maggid Mishneh emphasizes that the intent is not necessarily to the place from which the article was stolen, but rather to a safe but obvious place in the owner’s domain. Thus, he will surely notice the article in the near future.

This follows the opinion (Bava Kama 118a) that maintains that when a person counts the money in his possession, he will be aware of the extra amount and will realize that the stolen amount has been returned.

See Hilchot Gezelah 1:8.

I.e., including the sheep that had been stolen.

For we assume that the owner took notice of the return of the stolen sheep and will give it the extra attention it requires.

And unless extra attention is shown to it, it might run away.