דף ק"ז
שמות פרק כב
(ח) עַל כָּל דְּבַר פֶּשַׁע עַל שׁוֹר עַל חֲמוֹר עַל שֶׂה עַל שַׂלְמָה עַל כָּל אֲבֵדָה אֲשֶׁר יֹאמַר כִּי הוּא זֶה עַד הָאֱלֹהִים יָבֹא דְּבַר שְׁנֵיהֶם אֲשֶׁר יַרְשִׁיעֻן אֱלֹהִים יְשַׁלֵּם שְׁנַיִם לְרֵעֵהוּ
רבי יוחנן understands from the word אבדה that just as a custodian who claims a deposit was stolen when in fact he stole it he pays כפל, the same holds true for one that found a lost article and claimed it was stolen. The גמרא deduces from this that a custodian should be responsible for a minor's deposit that is no less than a lost article. Just as one becomes responsible of a lost article the same should be true even for a minor's property that he cannot legally transfer. The גמרא gives two answers:
1. The case where he is not responsible for a minor's item is where it does not exist when he became an adult so he was unable to make a valid claim against the custodian.
2. The owner does not have to give the item to the custodian to create a responsibility but he must be mentally competent to create a legal custodian.
רבי יוחנן requires a שומר חינם to admit and deny part of the claim to be required to pay כפל
The subject of the verse is an unpaid custodian. The words כי הוא זה in the verse mean I owe you only this much of your claim. If he denies it all he is not obligated to swear.
רב חייא בר יוסף disagrees. He holds the partial admission applies only to loans based upon a concept called עירוב פרשיות the Torah combines the law of a deposit and loan in the same verse.
He holds that loans are special because the lender did him a favor he cannot dismiss. He cannot deny the whole loan only part. Since the borrower may own him the full amount he has to swear on the other half. In the case of a deposit the custodian must swear even if he denies the full amount.
רמי בר חמא is the third opinion. He agrees with רבי יוחנן but applies it to all custodians
The verse deals specifically with a שומר חינם. A שומר שכר is learned by a גזירת שוה, the word give is mentioned in both כי יתן איש. The verse concerning a borrower begins with a ו to indicate its laws are a carryover from the previous.
רב חייא בר יוסף holds that the custodian does not pay כפל unless he used it before his oath.
שמות פרק כב
וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֱלֹהִים אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ... אֲשֶׁר יַרְשִׁיעֻן אֱלֹהִים יְשַׁלֵּם שְׁנַיִם לְרֵעֵהוּ
The verse means he swears that he did not use the deposit but if he is found to be lying that in fact he
used it he pays כפל.
רבי חייא בר אבא quoted רבי יוחנן as saying the custodian is liable to כפל even if his animal is standing next to its trough meaning not used by the custodian
This has two possible meanings
1. רבי יוחנן holds he is only liable for כפל where he did not use the animal. As soon as he uses it he is a גזלן and acquires it. If after, he claims it was stolen he would not be liable to כפל because it is no longer a deposit. In addition, his oath is immaterial because he has to pay already as a גזלן. It no longer matters whether it was stolen from him.
2. He follows the apparent understanding of the verse that if he used it he is liable but includes even the case where he did not use it.
There is another statement of רבי יוחנן that he exempts the custodian from כפל where he first claims the deposit was lost, swore and then claimed it was stolen and swore after which came witnesses that he is the thief he does not pay כפל because by way of his first oath he Is no longer liable to the owner. His second oath was inconsequential. We cannot assume necessarily that רבי יוחנן holds he is exempt from paying if he uses the item.
רב ששת holds that the requirement to swear and pay כפל applies only where he did not use the deposit
He infers from the verse the exact opposite of רב חייא בר יוסף
It follows that there are three opinions concerning this law
1. רב חייא בר יוסף holds that he is liable to כפל and for the false oath only where he used the deposit.
2. רב ששת holds he is liable only if he did not use it prior to his claim and oath.
3. רבי יוחנן's opinion is questionable. It is not clear if he holds it specifically where he did not use it or even where he did use it.
