QUESTION: Rav Huna as in the name of Rav states that when a person denies that he owes his friend and he takes an oath to that effect, he is exempt from paying even if witnesses later testify that he does owe the money. Rav derives this from the verse, "And the owner shall accept it and he shall not pay" (Shemos 22:10), which implies that when a Shomer takes an oath, the owner of the object receives the oath in place of payment. The Shomer therefore does not pay even if it is established later that he lied. Rav derives from here the general principle that whenever the defendant "gives" the claimant an oath, he becomes exempt from giving him money.

The Gemara relates that Rav Nachman taught this law of Rav, and Rav Acha bar Minyumi challenged it from a Mishnah in Shevuos (49a). The Mishnah discusses a case in which a person asked a Shomer to return his object, and the Shomer replied that the object was lost and he took an oath to that effect. Afterwards, witnesses testified that the Shomer had eaten the object. The Mishnah says that the Shomer must pay the Keren (principle). If, however, no witnesses came but the Shomer admitted his own guilt, he must also pay an extra fifth and bring a Korban Asham. It is clear from the Mishnah that one must pay when his guilt is established, even though he took an oath that he was innocent.

Rav Nachman answered that the Mishnah in Shevuos refers to an oath taken outside of Beis Din. RASHI (DH Chutz) explains that such an oath is not strong enough to exempt the Shomer from the monetary payment after witnesses testify that he stole the object.

Rav Acha asked another question from the second part of the Mishnah in Shevuos. The Mishnah states that if the owner asks the Shomer where his object is and the Shomer replies that it was stolen and swears to that effect, and then witnesses testify that the Shomer stole the object, the Shomer must pay Kefel (double). If the Mishnah refers to an oath taken outside of Beis Din, why should the Shomer be liable for Kefel? (RASHI (DH Kan) explains that one is liable for Kefel only when he takes an oath administered by Dayanim.)

(Rav Acha's question is that since the second part of the Mishnah must refer to a case of an oath taken in Beis Din, the first part of the Mishnah also must refer to such a case. Rashi (DH Kafatz) explains that the fact that the second part of the Mishnah states that Kefel must be paid after an oath does not contradict Rav's position. Rav agrees that when a Shomer takes an oath about a stolen Pikadon (for which he must pay Kefel if he is found to be lying), he certainly must pay the Keren if he is caught later.)

After he gave one answer which he admitted was difficult, Rav Nachman replied that both parts of the Mishnah refer to an oath taken in Beis Din. However, the first part of the Mishnah refers to a case in which the Shomer jumped to take the oath before Beis Din obligated him to do so. This presents no difficulty to Rav, since Rav says that the Shomer is exempt from future payments only when the oath was mandated by the Dayanim. Therefore, in the first case of the Mishnah, the Shomer is liable for future payments because the oath he took was not mandated by Beis Din. The second case of the Mishnah indeed refers to an oath mandated by Beis Din, and thus the Shomer is obligated to pay Kefel.

The RASHBA cites RABEINU CHANANEL who explains that the Gemara implies that if someone swears without being ordered to do so by Beis Din (for example, he swears merely because the owner demanded that he swear, or he swears without the knowledge of the owner, even though he does so in Beis Din), it is not considered an oath.

This inference, however, appears to contradict the Gemara in Gitin (35a). The Mishnah there (34b) teaches that a widow receives her Kesuvah from the orphans' estate only when she takes an oath. The Gemara (35a) says that Rav's practice was never to give a widow her Kesuvah (because he was concerned for false oaths). However, the Gemara relates that a widow once came in front of Rav Huna to ask for her Kesuvah. He refused to give it to her because of Rav's practice. The widow replied to him that since Rav's reason was that she might have already received some of the Kesuvah money from her husband while he was alive, she swore in the name of Hash-m "that I have not received any benefit from my Kesuvah at all." Rav Huna stated that Rav would agree that if the widow takes an oath on her own initiative, she may receive her Kesuvah.

How is the Gemara there to be reconciled with the Gemara here which implies that an oath not mandated by Beis Din is not an effective oath?

(a) The Rashba answers in the name of Rabeinu Chananel that, in the case in Gitin, the reason why the widow may collect her Kesuvah is unrelated to the oath she took. The oath indeed is not considered an oath at all, because it was not mandated by Beis Din. Rav Huna maintained that since the widow voluntarily made the oath, it is unlikely that she is swearing falsely and thus Beis Din may mandate her to take a proper oath, and she receives her Kesuvah on the basis of that oath.

(b) The Rashba gives another answer which differs from the view of Rabeinu Chananel. The Rashba explains that a voluntary oath indeed is usually valid. However, sometimes an especially strong oath is required. In such cases, a voluntary oath is not strong enough. A voluntary oath is not strong enough to exempt a Shomer from liability for future payments according to Rav. In order to be exempt from payment, he needs a strong oath, which is accomplished only when the oath is mandated by Beis Din. Similarly, the obligation of Kefel takes effect only when one makes a strong oath, an oath required by Beis Din.

In contrast, for a widow to collect her Kesuvah, a standard oath suffices (because she is entitled by law to the Kesuvah). Her voluntary oath is adequate for this purpose, which is why Rav Huna allowed her to collect her Kesuvah. (D. Bloom)

QUESTION: Rebbi Chiya bar Aba in the name of Rebbi Yochanan discusses the case of a person who found a lost object, and when the owner demanded his object the finder claimed that it was stolen from him. Afterwards, witnesses testified that the finder had taken the object for himself. Rebbi Yochanan ruled that he is obligated to pay Kefel like any other thief.

Rebbi Aba bar Mamal questioned this ruling from a Beraisa which explains the verse, "When a man gives to his friend money or utensils to guard, and they are stolen from the house of the person, if the thief is found he shall pay double" (Shemos 22:6). The Beraisa teaches that when a minor (not a "man") hands over a deposit to his friend to guard, the liability mentioned in the verse does not apply. The Shomer is not obligated to take an oath against the claim of a minor. Similarly, one does not incur an obligation of Kefel when the claimant is a minor.

The Beraisa asks that the verse implies that these laws do not apply to a minor only when the minor both handed over the deposit and claimed it back when he was a minor. What is the source that the Shomer is exempt from an oath and from Kefel when the owner was a minor when he handed over the deposit but he was an adult when he claimed it back? The Beraisa answers that this is derived from the verse, "... the cause of both parties shall come before the judges" (Shemos 22:8). RASHI (DH Talmud Lomar) explains that this verse teaches that the handing over of the deposit and the claim in Beis Din are compared to each other; both must be done when the owner of the object is an adult in order for the obligations of the verse to apply.

The Gemara explains that Rebbi Aba bar Mamal's question is as follows. If Rebbi Chiya bar Aba is correct that there is an obligation of Kefel for a finder who falsely claims that the object he found was stolen, this law should allow a minor to receive Kefel for his deposit. In the case of a lost object, the object was never given to the Shomer, and nevertheless the Shomer must take an oath that it was stolen and he pays Kefel if he swears falsely. Similarly, even though a deposit handed over by a minor is not considered to have been given to the Shomer (because "Ein Nesinas Katan Klum" -- "the act of giving of a minor has no validity"), when he becomes an adult and claims the deposit back, his claim should be sufficient to require an oath and Kefel from the Shomer.

The Gemara's discussion presents a difficulty to the ruling of the RAMBAM (Hilchos Sechirus 2:7) and SHULCHAN ARUCH (CM 96:1). The Rambam writes that if a minor deposits an object with an adult or lends an object to him, the adult must take the oath of a Shomer if the object was stolen. The Rambam writes that his teachers ruled that this is not considered an oath based on the claim of a minor -- which would contradict the principle that no oath is taken on the basis of the claim of a minor -- because every time a Shomer takes an oath the claim which prompts the oath is only a doubtful one (the claimant is not sure that the Shomer was negligent in guarding the object). (Accordingly, the strength of the claim of the minor is not what causes the Shomer to take the oath. Only when the claim must be one of certainty is a minor unable to force his opponent to take an oath.)

The MAGID MISHNEH writes that the Rambam's opinion is that of the RI MI'GASH. According to this opinion, the Mishnah in Shevuos (38b) which states that one never takes an oath in response to the claim of a minor refers to a case such as Modeh b'Miktzas. (A minor claimed that the adult owes him 100 and the adult admits that he owes 50. Under normal circumstances (when both litigants are adults), the defendant must make a Shevu'ah d'Oraisa of Modeh b'Miktzas to exempt himself from paying 50.)

According to the Rambam's opinion, when the Beraisa derives from the verse (Shemos 22:8) that the defendant is exempt from an oath when the claimant was a minor both when he gave the object to the defendant and when he demanded the return of the object, it refers only to a case of Modeh b'Miktzas. If the case of the Beraisa would be a case of an object deposited with a Shomer, the defendant indeed would be obligated to take an oath according to the ruling of the Rambam. The Rambam's opinion is consistent with the simple understanding of the verse, since the verse cited by the Beraisa discusses specifically the Shevu'ah of Modeh b'Miktzas. However, according to the Rambam, why does Rebbi Aba bar Mamal assume that this case poses a question on Rebbi Chiya bar Aba? Rebbi Chiya bar Aba agrees that in the case of a minor who claims that his Pikadon was stolen, the defendant must take an oath!

ANSWER: The PNEI YEHOSHUA answers that the Rambam's ruling that a Shomer must take an oath to a minor does not follow the opinion of Rebbi Chiya bar Aba, but rather it follows the opinion of Rebbi Chiya bar Yosef (106b, 107a) who rules that "Eiruv Parshiyos Kasuv Kan" -- "a mixture of topics is written here" (see Background to Sanhedrin 2:43). According to this opinion, the topics in the verse (Shemos 22:8) -- Shomer Chinam, and Modeh b'Miktzas in the case of a loan -- were mixed in order to learn Halachos from one topic to the other. (See RASHI to 107a, DH Eiruv.)

Accordingly, the Rambam maintains that the verse, "When a man gives to his friend money or utensils to guard" (Shemos 22:6), from which the Beraisa derives that the law applies only when a man, but not a minor, gives a deposit to his friend to guard, refers only to a loan and not to a Pikadon. Since the Halachah follows the view of Rebbi Chiya bar Yosef, if a minor entrusted a deposit with a Shomer, the Shomer may be obligated to take an oath based on the minor's claim.

(See the Pnei Yehoshua who says that nevertheless one does not pay Kefel based on the claim of a minor. See also BI'UR HA'GRA (CM 96:4) who gives the Pnei Yehoshua's answer in a few concise words.) (D. Bloom)