Explanation: Perhaps he will rush to admit before witnesses come. This is like Rav, who says that if one admitted to a fine and afterwards witnesses came, he is exempt.

Implied question: We infer that the Mishnah in Bava Kama (74b) is unlike Rav! It equates admission [to slaughtering or selling a stolen animal] to testimony of one witness (if more witness(es) come later, he will pay four or five)!

Answer: According to the conclusion there, which says that presumably, Rav's teaching is when he obligated himself principal, but if his admission did not obligate himself anything, Rav did not say [that if witnesses came afterwards, he is exempt], the Mishnah is not unlike Rav.

Pesak: This is the Halachah, and unlike Shmuel, who obligates (a fine after witnesses come).

Source: Also R. Yochanan holds there that he is exempt, and the Halachah follows R. Yochanan against Shmuel, like it says in Eruvin (47b).

Question: We should say that it is considered as if he said to him "when it will be stolen, and you will pay me, my cow is acquired to you from now, just before it is stolen." Through this, he acquires even if it is standing in a swamp!

This is like R. Yochanan said (Kesuvos 82a), that if one said "do Meshichah on this cow, and acquire it from now and after 30 days", he acquires even if it is standing in a swamp!

He did not acquire the shearings and offspring, even if he said "from now", since the Kinyan is not finished until just before it is stolen;

Source: This is like R. Yochanan said in Kidushin (60a. If Reuven was Mekadesh Leah "from now and after 30 days", then David was Mekadesh her "from now and after 20 days', then Moshe was Mekadesh her "from now and after 10 days', and Shmuel was Mekadesh her "from now..."

Even if they are 100 (men, the Kidushin of), all of them take effect in her, for each left room for his colleague!

Answer: Perhaps Kidushin is strong, and once it takes effect, it is not uprooted;

However, here, the shearings and offspring, at least those that are at the time of Mesirah, "from now" helps to acquire [them]t close to the time of theft, retroactively.

Question: Since the Reisha is difficult to [resolve with] the Seifa, we should say that [once he said that he will pay] "it is as if [he paid]", like we say in Kidushin (5b), and this is difficult for R. Yochanan and Reish Lakish!

Answer: It says "he paid" according to Abaye in Bava Kama (108a) to teach that if he swore and paid, he does not get the Kefel;

According to Rava, it teaches that even though he swore first, he gets the Kefel.

"He did not want to swear" means that he did not persist in [reliance on his] Shevu'ah (rather, he paid).

However, if he said "I will pay", if he swore first, [Rava agrees that] he does not get the Kefel.

Explanation: [The owner is not Makneh the Kefel to a borrower until he pays,] because he (the borrower) gets all the benefit. Even if he stipulated with him to be like a Shomer Chinam, he does not acquire until he pays;

According to the reason above [that a borrower does not get the Kefel until he pays], because it is not common [to die while working, so he had no way to exempt himself], if he stipulated to be like a Shomer Chinam, he acquires the Kefel, Migo (since) he could have exempted himself through [a claim of] theft or loss, which are common.

Explanation: [Rav Papa] said that [if he said] "I will pay", he did not acquire the Kefel. If he paid, he acquired Kefel.

Alternative text: R. Chananel's text says "surely, this is a refutation." Since Rav Papa explains the reason because it is not common, this applies even if he paid;

Implied question: [If Rav Papa holds that even if he paid, he did not acquire Kefel,) why did he say 'if he said "I will pay"' [he did not acquire the Kefel? He should have taught a bigger Chidush, that even if he paid, he did not acquire it!]

Answer: Because [Rav Papa] taught [about one who said] regarding a Shomer Chinam and a Shomer Sachar, he taught so also regarding a borrower.

Inference: R. Tam proved from here that if one said to his friend "swear and receive", before he swore, he can retract and say "I will swear and not pay."

Citation: In Bava Basra (128a), it says that [if Reuven said] "you stole my slave", and [Shimon] answered "you sold him to me. If you want, swear [that he is yours] and take", and [Reuven] swore, [Shimon] cannot retract.

Assertion: The text does not say "Nishba" without a Vov, which connotes that [Reuven] can swear [Bal Korcho of Shimon, i.e. Shimon cannot retract. Rather, it says v'Nishba, i.e. [it occurred that Shimon did not retract,] and Reuven swore.)

Citation (Shevu'os 39a): If [one who must swear in order to collect] said "I will not swear", we exempt [his opponent] immediately

Explanation #1 (Rashi): We exempt him immediately, for [the claimant] cannot retract.

Rejection and Explanation #2: This is wrong [like R. Tam explained here]. Rather, we expel him immediately from Beis Din, so he will be embarrassed to return and say "I will swear."

Retraction: Later, R. Tam explained in a Teshuvah that the text properly says Nishba without a Vov, and he swears against [Shimon's] will.

Implied question: It says in Sanhedrin (24b) regarding "my father and your father are believed [to testify against me]." They argue about after the final verdict, but before the final verdict, all agree that he can retract!

Answer: Here, even before [his opponent] swears, he cannot retract, for once he accepted on himself to pay if his opponent will swear, it is like after the final verdict;

Here that we say "he retracted", this does not mean that he can retract. Rather, he wants to retract, even though he cannot;

[The owner] is not Makneh the Kefel to him because he burdened him to go to Beis Din, like it says below about the one who deposited rings.

Support: We find like this in Bava Basra (138a. If Shimon acquired on behalf of Levi, and Levi was initially quiet and later protested,) since he was silent, he acquired. When he screams at the end, he retracts. I.e. he wants to retract, but he cannot.

Question: How can he pay Kefel to the Shomer's son? One does not bequeath a fine to his son, like the Mishnah in Kesuvos (41b) teaches!

Explanation #1 (Rashi): [He borrowed] a cow of Nichsei Melug (property that she brought into the marriage, and when she is widowed or divorced, she takes it back without compensation for change in value.) The principal is hers, and the husband eats the Peros.

Question: What was the question? When he borrows the cow from the woman, it is as if borrows the Peros from her husband. When he pays the cow to the husband, it is as if he pays principal to the woman!

Answer: He paid to the husband his portion, like it was worth for its Peros. He did not pay the principal.

Distinction: This is worse than paying to one of the partners his share. There, he paid the principal. This is difficult.

Explanation #2: He borrowed from the woman when she was single. The principal and Peros were hers. She married;

Now, he paid the Peros to the husband. Even if he gave everything to the woman, since she married, he gets the Peros [of the payment], like the law of Nichsei Melug.

Similarly, if a woman borrowed when she was single, and married, and paid, now [it is as if] her husband paid, for the Peros [of what she paid with] are his.

Explanation #3 (Rivan): [We ask] if one borrowed from a woman and she died, and he paid her husband, what is the law?

Even if you will say that when he paid to the sons, he acquired the Kefel because [they show gratitude that] their father was pleased (the Shomer helped him), a husband is not concerned for his wife's content. (Kefel depends on the intent of the owner just before it was stolen, for this is when he is Makneh the deposit to the Shomer. We discuss when she died before it was stolen.)

Consequence: According to the version [above, that the owner is Makneh the deposit] from now (when he gave it to the Shomer, so it depends on the intent of the original owner, we must say that), a woman is not concerned for her husband (if the Shomer will pay him after she dies);

Similarly, if a woman borrowed and died, and her husband paid, even if a depositor is Makneh Kefel to the Shomer's sons, this is because he has mercy on them, due to their father...

However, he is not Makneh to the husband due to his wife who died.

Explanation #1 (Rashi): [When he shows the deposit, and we see what it is really worth, [the borrower] will be disqualified from testimony and swearing.

Question (R. Tam): All the more so, the borrower should swear! He will be extra meticulous to swear truthfully, lest the lender disqualify him. Do we enact to help swindlers?!

Suggestion: We are concerned lest the security get ruined afterwards, and he will slander [the borrower], even though he swore truthfully.

Rejection: If so, what was the question below "also when the lender swears, the borrower will toil and bring [the security]!"? If it is worth more, he swore falsely. All the more so he will be careful with his Shevu'ah!

Answer (and Explanation #2 - R. Tam, from R. Chananel): It looks like a needless oath. It is disgraceful to swear when the matter will be clarified afterwards, for the lender will take out the security;

However, when we impose [the oath] on the lender, he will not swear until he knows that it cannot be found.

Question: Why don't we list this in Shevuos (44b) among those who swear and receive?

Suggestion: The Tana omitted cases.

Rejection: It taught "these", like we infer in Kidushin (16b. This shows that the Tana taught all the cases), regarding "these (Avadim Ivriyim) get gifts [when they finish their servitude]."

Answer: There, we count only those who cannot swear, e.g. a Gazlan and one who wounded. Since [the victim] entered his house healthy, and they quarreled, and he left wounded, it is evident that he wounded him;

Similarly, [if an employer told] a grocer [to pay workers], the employer cannot swear, for he does not know whether or not the grocer paid the workers.

Similarly, regarding a worker [who says that he was not paid], the employer cannot swear, for he is distracted with his workers.

Support: For this reason, one who spends money on his wife's property, we say in Kesuvos (80a) that he swears how much he spent and receives, for the woman does not know how much her husband spent;

It is not listed in Shevuos, for it is included in the case of a worker.

Distinction: However, here the borrower could swear, for he knows about the security more than the lender does, but Chachamim did not want [him to swear]. This is a decree, lest [the lender] take it out... (see also Tosfos in Kesuvos 80a and 87b, who says that in Shevuos 44b we list those for whom one would have thought that even with an oath, they do not receive. In Kesuvos 87b, we teach those whom one would have thought that they receive even without an oath.)