She'elah uFikkadon - Chapter 6

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.