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1) ONE WHO CLAIMS THAT A DEPOSIT WAS STOLEN

(a) (R. Chiya bar Aba): A watchman claimed that a deposited object was stolen - he only pays double if he partially denies the claim and partially admits to the claim.
(b) Question: How do we know this?
(c) Answer: "For this is it (i.e. he admits to something, denies something else)".
(d) This argues on R. Chiya bar Yosef.

1. (R. Chiya bar Yosef): This verse does not apply where it was written, rather elsewhere, by loans.

(e) Question: Why should the oath by loans depend on partial admission, and not by deposits?
(f) Answer: As Rabah taught.

1. (Rabah): The Torah obligates a borrower to swear (when he partially admits to the claim) because it is established human nature that a borrower is not brazen enough to (fully) deny the lender's claim;

i. If not for this, he would deny the entire claim.

2. Because borrowers are not brazen, he would like to admit to the full claim;

i. He denied part of it to stall until he has the money to pay the loan.

3. The Torah imposed the oath on him, in order that he will admit to the full claim.
4. A watchman is brazen enough to deny the claim, so he swears even by full denial.

(g) (Rami bar Yechezkel): The 4 types of watchmen - a free watchman, borrower, paid watchman or renter - they only swear by partial denial and partial admission.
(h) (Rava): He learns about a free watchman from "For this is it", which is written by a free watchman;

1. He learns a paid watchman from a Gezeirah Shavah "Nesinah-Nesinah" from a free watchman;
2. By a borrower - "v'Chi (and when) one will borrow" - the 'Vov' equates this law to the previous Parshah (a paid watchman);
3. By a renter - Tana'im argue if his law is like a free or paid watchman;

i. Either way, we learned that he only swears by partial admission.

(a) (R. Chiya bar Yosef): One who claims that a deposit was stolen only pays double if he took it (for his own needs).
(b) Question: How do we know this?
(c) Answer: "The watchman will come to the judges, (to swear that) he did not take his fellowman's object...(For any transgression, he pays double)" - implying, if he did take it, he pays double.

1. This means that when the Torah says he pays double, this is only when he took it!

(d) (R. Chiya bar Aba citing R. Yochanan): The case is, the deposited animal is at the feeding trough (he did not take it).
(e) Question (R. Zeira): Does this mean - had he taken it, he could not swear, he would pay double;

1. Or - even if it is at the feeding trough, if he (falsely) claims that it was stolen, he pays double?

(f) R. Chiya bar Aba: I did not hear about this, but I heard a similar case.

1. (R. Asi citing R. Yochanan): A watchman (claimed and) swore that the deposit was lost, then he swore that it was stolen. Witnesses later testified that he had it - he does not pay double.
2. Suggestion: This is because he acquired the deposit through his first oath (and only owes principle - henceforth, it is considered his object, he cannot pay double for it).
3. Rejection: No - rather, once he swore (that it was lost), he is not obligated to swear again, the second oath is not as a watchman's oath to pay double for it.
4. Support (R. Avin citing R. Yochanan): A watchman swore that the deposit was lost, then he swore that it was stolen. Witnesses later testified that he had it - he does not pay double, because he was only obligated to swear once.

(g) (Rav Sheshes): One who claims that a deposit was stolen - if he took it (before he swore), he is exempt (from the double payment).
(h) Question: What is the reason?
(i) Answer: "The (watchman) will come to the judges, if he did not take his fellowman's object" - implying, if he did take it, he is exempt.
(j) Question (Rav Nachman): But he must make 3 oaths - that he was not negligent, that he did not take it for himself, and that it is not in his domain!

1. Suggestion: The oath that he did not take it for himself is like the oath that it is not in his domain;
2. Just as by the oath that it is not in his domain, if it is found that he swore falsely, he pays double (for really, he stole it) - also, by the oath that he did not take it for himself!

(k) Answer (Rav Sheshes): No - the oath that he did not take it for himself is as the oath that he was not negligent;

1. Just as if he swore falsely that he was not negligent, he (has the law of an (open) robber) does not pay double, also by the oath that he did not take it for himself!