דף 34

and then said: I will not pay, what is the halakha? Do we say he is retracting his intention to pay and therefore has no right to the double payment? Or, perhaps he stands committed to his initial statement and is merely postponing payment to a later date, in which case he maintains rights to the double payment.

The Gemara raises another dilemma. If the bailee said: I hereby choose to pay, and then he died before paying, and his sons said: We are not paying, what is the halakha? Do we say they are retracting their father’s decision to pay, or perhaps they stand committed to fulfilling their father’s statement and are merely postponing payment to a later date when they will be able to pay?

The Gemara raises another dilemma. If the father died before he declared his willingness to pay and the sons paid, what is the halakha? Can the owner say to them: When I transferred rights to the double payment, I transferred them to your father, who pleased me, but to you, I did not transfer those rights? Or perhaps this case is no different, and the owner transfers rights to the double payment provided that he receives payment, and it does not matter whether it was the bailee or his sons who paid him.

If the owner of the deposit died and the bailee paid the payment to the owner’s sons, what is the halakha? Can the sons say to the bailee: When our father transferred rights to the double payment to you, it was because you pleased him, but as far as we are concerned, you did not please us? Or perhaps it is no different, and the bailee receives the double payment. Likewise, if both the owner and the bailee died, and sons of the bailee paid the sons of the owner, what is the halakha?

The Gemara raises additional dilemmas: If the bailee paid half the value of the deposit before the thief was discovered, what is the halakha? If one borrowed two cows, and they were stolen, and he paid the value of one of them, what is the halakha? If one borrowed an item from partners, and he paid one of them, what is the halakha? In the case of partners who borrowed an item and one of them paid, what is the halakha? If one borrowed an item from a woman and paid her husband, what is the halakha? In the case of a woman who borrowed an item, and her husband paid, what is the halakha? The Gemara concludes: All of these dilemmas shall stand unresolved [teiku].

§ Rav Huna says: Even if the bailee declares his intention to pay for the deposit, the court administers an oath to him that the item was actually stolen or lost and is not in his possession. What is the reason for this oath? We are concerned that perhaps he coveted that item.

The Gemara raises an objection from a mishna (Shevuot 43a): In the case of one who lends money to another on the basis of collateral, and the collateral was lost, and the creditor says to the debtor: I loaned you a sela on the basis of that collateral and that collateral was worth a shekel, i.e., a half-sela. Therefore you owe me a shekel. And the other individual, the debtor, says in response to that claim: That is not the case. Rather, you loaned me a sela on the basis of that collateral, and the collateral was worth a sela; I owe you nothing. In this case, the debtor is exempt from payment.

The mishna continues: If the creditor claimed: I loaned you a sela on the basis of that collateral and it was worth a shekel. And the other individual, the debtor, says: That is not the case; rather, you loaned me a sela on the basis of that collateral and the collateral was worth three dinars, i.e., three-quarters of a sela. In this case, the debtor is obligated to take an oath, due to the fact that he responded to the claim of the creditor with a partial admission.

The mishna continues: If the debtor said: You loaned me a sela on the basis of that collateral and the collateral was worth two sela, so now you owe me a sela. And the other party, i.e., the creditor, said: That is not the case; rather, I loaned you a sela on the basis of that collateral and the collateral was worth a sela. Here, the creditor is exempt.

If the debtor said: You loaned me a sela on the basis of that collateral and the collateral was worth two sela. And the other party, i.e., the creditor, said: That is not the case; rather, I loaned you a sela on the basis of that collateral and the collateral was worth five dinars. Here, the creditor is obligated to take an oath due to the fact that he responded to the claim of the debtor with a partial admission.

The mishna concludes: Who takes the oath? The one in whose possession the deposit was located, i.e., the creditor, who took collateral from the debtor. The Sages instituted this provision lest this party, i.e., the debtor, take an oath and the other party, i.e., the creditor, produce the deposit and prove the oath false.

The Gemara seeks to clarify the mishna: To which case in the mishna is this halakha referring? If we say it is referring to the latter clause of the mishna, where the debtor claims that the creditor owes him money, the mishna’s explanation is unnecessary: Derive that the obligation to take the oath is incumbent upon the creditor due to the fact that he admits to part of the debtor’s claim, which renders one obligated to take an oath by Torah law. Rather, Shmuel says: This halakha is referring to the first clause of the mishna.

The Gemara clarifies further: What is the meaning of Shmuel’s statement that this halakha is referring to the first clause of the mishna? It is referring to the latter part of the first clause: The creditor says: I loaned you a sela on the basis of that collateral and it was worth a shekel. And the other individual, the debtor, says: That is not the case; rather, you loaned me a sela on the basis of that collateral and the collateral was worth three dinars. Here, the halakha is that the debtor is obligated to take an oath. Fundamentally, the obligation to take the oath is that of the borrower, as he is the one who responds to the creditor’s claim with a partial admission. But the Sages said: Let the creditor take the oath to bolster his claim, lest this party, the debtor, take an oath and the other party, the creditor, produce the deposit.

After explaining this mishna from tractate Shevuot, the Gemara analyzes its connection to the statement of Rav Huna: But if