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1) HOW THE WATCHMAN GETS DOUBLE PAYMENT

(a) Question (Rami bar Chama): A man cannot transfer ownership of something that is not yet in the world (i.e. the double payment)!

1. Even according to the opinion that a man can transfer ownership of something not yet in the world - that is only in cases such as fruits that will grow on a date tree, for they normally come - but here, who says that the deposit will be stolen?

i. And even if it is stolen - who says that the thief will be found? And even if he is found, perhaps he will admit, and not pay the fine!

(b) Version #1 - Answer #1 (Rava): It is considered as if Reuven stipulated (when he gave over the deposit): 'If it will be stolen and you will want to pay, it is acquired to you from now.'
(c) Objection (R. Zeira): If so, the shearings and offspring should belong to Shimon!

1. (Beraisa): Shimon receives everything except the shearings and offspring!

(d) Answer #2 (R. Zeira): It is considered as if Reuven stipulated: 'If it will be stolen and you will want to pay, it is acquired to you from now, except for the shearings and offspring.'
(e) Question: Why should Reuven stipulate thusly?
(f) Answer: People normally give away profit that comes from another source, but not profit that comes from their own property.
(g) Version #2 - Answer (Rava): It is considered as if Reuven stipulated: 'If it will be stolen and you will want to pay, it is acquired to you just before it is stolen.'
(h) Question: What is the difference between the two versions?
(i) Answer #1: The question of R. Zeira (this is answered by Version #2).
(j) Answer #2: If the animal was in a swamp just before it was stolen (since it cannot be acquired there, Shimon would not get the double payment).

(a) (Mishnah): If he paid and did not want to swear...
(b) (R. Chiya bar Aba): Even if he did not pay, once he said that he wants to pay, he acquires the double payment.
(c) Question (Mishnah): If he paid and did not want to swear - we see, he must pay!

1. Counter-question (end of the Mishnah): If Shimon swore and did not want to pay...
2. He does not get the double payment because he did not want to pay - had he wanted to pay, he would get it!
3. Conclusion: The inferences contradict one another - we cannot determine which is correct, the Mishnah neither supports nor refutes R. Chiya.

(d) Support (Beraisa): Reuven rented a cow from Shimon; it was stolen. Reuven said, 'I will pay and not swear'; the thief was found - he pays double to Reuven.
(e) (Rav Papa): A free watchman - once he says that he was negligent, (the owner wants him to) acquire the double payment, for he could have exempted himself by saying that it was stolen;

1. A paid watchman - once he says that it was stolen, he acquires (the double payment), for he could have exempted himself by saying that it died through Ones;
2. Version #1: A borrower who says that he will pay, he does not acquire;

i. The only way he could have exempted himself was to say that it died working, and this is uncommon (he would not want to claim this).

3. Version #2: Also a borrower, once he says that he will pay, he acquires, for he could have exempted himself was to say that it died working.

(f) Question (Rav Zvid): But Abaye said that a borrower does not acquire until he actually pays!
(g) Question: What is Abaye's reason?
(h) Answer: Since a borrower gets free benefit, the owner does not want him to acquire with mere words.
(i) Support (Beraisa): Shimon borrowed a cow from Reuven; it was stolen. Shimon paid first, and then the thief was found - Shimon receives the double payment.

1. This does not challenge Rav Papa according to Version #1 (he never said what the law is if he actually pays).
2. Question (against Rav Papa according to Version #2): He only gets the double payment because he paid!
3. Answer: We can answer as we answered the Mishnah (which used the same language) - the same applies once he says he will pay.
4. Question: But the Beraisa says 'he paid first' - the Mishnah did not say this!
5. Answer: It means, he said first (that he will pay before the thief was found).
6. Question: Regarding a renter, it says 'he said' - it changes the language by a borrower to show that he must pay first!
7. Answer: That is a different Beraisa, you cannot prove anything from the different languages.
8. Rejection: We asked the Chachamim that learn the Tosefta (authenticated Beraisos) of R. Chiya and R. Oshiya - they said that they are parts of the same Beraisa.

(j) Clearly, if the watchman first said that he will not pay, and then decided to pay, he acquires.
(k) Question #1: If first he said that he will pay, and then decided not to pay, what is the law?

1. Since he retracted, he does not acquire?
2. Or - perhaps he really intends to pay, but not right now?

(l) Question #2: If Shimon said that he will pay, then he died, and his heirs say that they will not pay, what is the law?

1. Since they retract, they do not acquire?
2. Or - perhaps they really intend to pay, but not right now?

(m) Question #3: If Shimon's heirs paid, what is the law?

1. Can Reuven say - I only wanted your father to get the double payment, since he was very nice to me - but not that you should get it!
2. Or - is there no difference?

(n) Question #4: If (Reuven died and) Shimon paid Reuven's heirs, what is the law?

1. Can they say - our father would have given you the double payment, since you were very nice to him - we do not give it to you!
2. Or - is there no difference?

(o) Questions: What is the law in the following cases:

1. Shimon's heirs paid Reuven's heirs;
2. Shimon paid half;
3. Shimon borrowed two cows and paid for one;
4. Shimon borrowed from two partners and paid one of them;
5. Two partners borrowed, and one of them paid;
6. Shimon borrowed from a married woman, and paid her husband;
7. A married woman borrowed, and her husband paid.

(p) All these questions are not resolved.

(a) (Rav Huna): A watchman that wants to pay must swear that the deposit is not in his premises.
(b) Question: What is the reason?
(c) Answer: We are concerned that he wants to keep the object himself.
(d) Question ((to be formulated later) - Mishnah): Reuven lent Shimon, taking a collateral; he lost the collateral. Reuven says that he lent one Sela, the collateral was worth half a Sela (and he demands payment of half a Sela); Shimon says that the collateral was worth one Sela, the same as the loan - Shimon is exempt from swearing (since he says he does not owe anything);

1. If Reuven says as before (he lent a Sela, the collateral was worth half a Sela), and Shimon says that the loan was one, the collateral was worth three quarters, Shimon must swear (since he admits to part of the claim).

(e) If Shimon says 'I borrowed one Sela, the collateral was worth two - you must pay me one' and Reuven says that the loan and collateral were both worth one, Reuven need not swear (he denies owing anything);

1. If Shimon says 'I borrowed one, the collateral was worth two' and Reuven says that the loan was one, the collateral was worth one and a quarter, Reuven must swear.
2. The one holding the collateral swears, lest one will swear and the other will show the collateral (and prove that the first swore falsely about its value).
3. Question: To which case does this refer?

i. If in the last case - even without this concern, Reuven swears, for he partially admits to the claim!

4. Answer (Shmuel): This applies to the beginning of the Mishnah (when Reuven claims from Shimon).
5. Question: There are two parts to that case - which does Shmuel mean?
6. Answer: The latter - Shimon partially admitted, mid'Oraisa Shimon must swear; Chachamim enacted that instead Reuven swears, lest Shimon swear and Reuven would show the collateral to prove that Shimon swore falsely about its value.