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Babylonian Talmud: Tractate Baba Kamma
There is here an 'interweaving of sections',1 as the words, this is it written here2 have reference to loans.3 But why a loan [in particular]? In accordance with Rabbah, for Rabbah stated:4 'On what ground did the Torah lay down5 that he who admits a part of a claim has to take an oath?6 Because of the assumption that no man is so brazen-faced as to deny [outright] in the presence of his creditor7 [the claim put forward against him].8 It could therefore be assumed that he9 was desirous of repudiating the claim altogether, and the reason that he did not deny it outright is10 because no man is brazen-faced [enough to do so].11 It may consequently be argued that he was on this account inclined12 to admit the whole claim; the reason that he denied a part was because he considered: Were I to admit [now] the whole liability, he will soon demand the whole claim from me; I should therefore [better] at least for time being get rid of him,13 and as soon as I have the money will pay him.14 It was on account of this that the Divine Law15 imposed an oath upon him so that he should have to admit the whole of the claim.16 Now, it is only in the case of a loan that such reasoning could apply.17 whereas regarding a deposit the bailee would surely brazen it out [against the depositor].18
Rami b. Mama learnt: The four bailees
Baba Kamma 107b
have to deny a part and admit a part [of the claim before the oath can be imposed upon them]. They are as follows: The unpaid bailee and the borrower, the paid bailee and the hirer.1 Raba said: The reason of Rami b. Hama is [as follows]: In the case of an unpaid bailee it is explicitly written: This is it;2 the law for the paid bailee could be derived [by comparing the phrase expressing] 'giving'3 [to the similar term expressing] 'giving' in the section of unpaid bailee;4 the law for borrower begins with 'and if a man borrow'5 so that the waw copula ['and'] thus conjoins it with the former subject;6 the hirer is similarly subject to the same condition, for according to the view that he is equivalent [in law] to a paid bailee7 he should be treated as a paid bailee, or again, according to the view that he is equivalent [in law] to an unpaid bailee,7 he should be subject to the same conditions as the unpaid bailee.
R. Hiyya b. Joseph further said: He who [falsely] advances the defence of theft in the case of a deposit would not be liable8 unless he had [first] committed conversion,9 the reason being that Scripture says: The master of the house shall come near unto the judges to see whether he have not put his hand unto his neighbour's goods,10 implying that if he put his hand he would be liable,8 and thus indicating that we are dealing here with a case where he had already committed conversion.9 But R. Hiyya b. Abba said to them:11 R. Johanan [on the contrary] said thus: The ruling12 was meant to apply where the animal was still standing at the crib.13 R. Ze'ira then said to R. Hiyya b. Abba: Did he mean to say that this is so12 only where it was still standing at the crib,13 whereas if the bailee had already committed conversion,9 the deposit would thereby [already] have been transferred to his possession,14 so that the subsequent oath would have been of no legal avail,15 or did he perhaps mean to say that this is so even where it was still standing at the crib?16 — He replied: This I have not heard, but something similar to this I have heard. For R. Assi said that R. Johanan stated: One17 who had in his defence pleaded loss and had sworn thus, but came afterwards and pleaded theft,18 also confirming it by an oath, though witnesses appeared [proving otherwise], would be exempt.19 Now, is the reason of this ruling not because the deposit had already been transferred to his possession through the first20 oath? — He replied to him:21 No; the reason is because he had already discharged his duty to the owner by having taken the first oath.22
It was indeed similarly stated: R. Abin said that R. Elai stated in the name of R. Johanan: If one advanced in his defence a plea of loss regarding a deposit and had sworn thus, but came afterwards and advanced a plea of theft also confirming it by an oath, and witnesses appeared [proving otherwise], he would be exempt.19 because he had already discharged his duty to the owner by having taken the first oath.22
R. Shesheth said: One20 who [falsely] pleads theft in the case of a deposit, if he had already committed conversion,23 would be exempt,19 the reason being that Scripture says, 'The master of the house shall come near unto the judges to see whether he have not put his hand' etc.24 implying that were he to have already committed conversion he would be exempt. But R. Nahman said to him: Since three oaths are imposed upon him,25 an oath that he was not careless, an oath that he did not commit conversion and an oath that the deposit was no more in his possession, does this not mean that the oath 'that he did not commit conversion' should be compared to the oath 'that the deposit was no more in his possession so that just as where he swears 'that the deposit was no more In his possession,' as soon as it becomes known that the deposit was really at that time in his possession he would be liable for double payment, so also where he swore 'that he did not commit conversion, when the matter becomes known that he did commit conversion he would be liable?26 — He replied: No; the oath 'that he did not commit conversion' was meant to be compared to the oath 'that he was not careless'; just as where he swears 'that he was not careless' even if it should become known that he was careless,27 he would be exempt from double payment.28 so also where he swears 'that he did not commit conversion,' even if it becomes known that he did commit conversion,29 he would still be exempt from double payment.
Rami b. Hama asked: [Since where there is liability for double payment there is no liability for a Fifth,30 is it to be understood that] a pecuniary value for which there is liability to make double payment exempts from the Fifth, or is it perhaps the oath which involves the liability of double payment that exempts from the Fifth? In what circumstances [could this problem have practical application]? — E.g., where the bailee had pleaded in his defence theft confirming it by an oath and then came again and pleaded loss and similarly confirmed it by an oath,
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