REVACH L'DAF
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SUMMARY
If someone claims that his friend owes him a hundred Zuz and his friend admits he owes fifty and regarding the other fifty he says he doesn't know if he owes the money since he can't swear a Shevu'as Modeh b'Miktzas he must pay the other fifty.
According to R. Nachman and R. Yochanan the Mishnah which states if someone borrows a cow for half a day and rents it for half or borrows it for one day and rents it for the next day and the owner claims that the cow died while it was being borrowed and the borrower says he doesn't know he is Chayav to pay is only in a case when he borrowed two cows and they both died and the borrower admits that one of the cow died while it was being borrowed and he doesn't know about the other one. (1)
According to R. Nachman and R. Yochanan the third case of the Mishnah is in a case when the owner lent him two cows and rented him another and two of them died and the owner says the two borrowed cows died while the borrower admits one of the borrowed cows died and regarding the other one he says I don't know and since he can't swear he must pay.
Rami Bar Chama holds that a Shomer is only Chayav to swear a Shevu'as ha'Shomrim if he was given more than one item and he denied one item completely and the other item he claims was stolen or an Ones occurred. (2)
According to Rami Bar Chama in the opinion of R. Nachman and R. Yochanan the renter in the first two cases of the Mishnah is only Chayav to pay when he says he doesn't know if he was given three cows and in the third case of the Mishnah he is only Chayav if he was given four cows. (3)
If the owner claims the borrowed cow died and the renter claims the rented cow died the borrower swears the rented cow died and he is Patur. (4)
If the owner doesn't know whether the borrowed or rented cow died and the renter also doesn't know according to Sumchus who holds that money which is b'Safek is divided the renter must pay half. (5)
If someone borrows a cow with the owner and he subsequently rents the same cow without the owner it is a Safek if he is Chayav for Geneivah and Aveidah. (6)
If the answer to the previous question is that renting is an extension of borrowing it is a Safek if he first rents it with the owner lending his services and than he borrows it without the owner if the borrowing is extension of the renting. (7)
If the answer to the previous question is that borrowing is not an extension of lending it is a Safek if he first borrows it with the owner lending his services and than he rents it without the owner and than he again borrows it if the second time he borrowed it an extension of the first time and he is Patur or maybe since he rented it in the middle it is not an extension and he is Chayav. (8)
If a lender sends a cow to the borrower with his son, servant or Shali'ach, or with the son, servant or Shali'ach of the borrower and it dies on the way the borrower is Patur.
If the borrower requested that the cow be sent with the son, servant, or Shali'ach of the lender or the borrower or the lender notified the borrower that he will be sending the cow and the borrower told him to send it if it dies on the way the borrower is Chayav. (9)
A BIT MORE
1. R. Nachman and R. Yochanan hold that when someone claims that his fiend owed him a hundred Zuz and the friend says he doesn't know he is Patur from paying therefore if the owner claims that the cow died while it is being borrowed and the borrower say he doesn't know he is Patur from paying and the Mishnah which states he is Chayav is only in a case where he was given two cows and he admits one of them dies while it was borrowed he is Chayav a Shevu'as Modeh b'Miktzas and since he doesn't know he can't swear and therefore he must pay.
2. According to Rami Bar Chama a Shomer must deny completely one of the claims, for example he says I already returned one of to you or I never borrowed it and regarding the other item he claims that it was stolen or lost if he was a Shomer Chinam or an Ones occurred if he was a Shomer Sachar only in that case he is Chayav a Shevu'as ha'Shomrim and he swears that it was indeed stolen or lost and he is Patur.
3. Since according to Rami Bar Chama he is only Chayav a Shevu'as ha'Shomrim if he denies completely one of the claims and according to R. Nachman and R. Yochanan if he says he doesn't know if the rented cow or borrowed cow died he is only Chayav to pay if he is Modeh b'Miktzas and he admits that one of the cows that died was the borrowed cow; consequently in the case of the Mishnah he must have received three cows; the owner claims all of them died while they were being borrowed and the borrower denies one claim completely claiming that he already returned it and he admits to a second claim that a borrowed cow did indeed die and regarding the third claim he says he doesn't know if the cow died while it was being borrowed or while it was being rented only in that case he is Chayav a Shevu'as ha'Shomrim and since he can't swear he must pay. In the third case of the Mishnah he received four cows and the owner claimed the three borrowed cows died while the borrower denies one of the claims and he says he returned it and he admits that a second borrowed cow did indeed die and he says he didn't know if a second cow that died was the borrowed or rented cow, since he can't swear he must pay.
4. Although the renter is not Chayav a Shevu'as Modeh b'Miktzas since he did not admit to any Chiyuv, however he must swear a Gilgul Shevu'ah that the rented cow is the one that died because in any case he must swear that the rented cow died naturally and once he is Chayav a Shevu'ah he also must swear a Gilgul Shevu'ah that the rented one is the one that died and not the borrowed cow.
5. According to the Rabanan who argue with Sumchus the renter swears that he doesn't know and he is Patur because Ha'Motzi me'Chaveiro Alav ha'Re'ayah.
6. The Safek is that maybe borrowing and renting are two separate acts and therefore even though he borrowed with the owner since he didn't rent with the owner he is Chayav, or maybe renting is an extension of borrowing since they are both Chayav in Geneivah and Aveidah and therefore it is considered that he rented it with the owner and he is Patur.
7. The Safek is that since a borrower is Chayav for Onsim and a renter is not it is two separate acts or maybe since both a borrower and a renter are Chayav in Geneivah and Aveidah even though a borrower is Chayav in Onsim and a renter is not the borrowing is an extension of the renting.
8. It is also a Safek if he first rents it with the owner lending his services and than he borrows it without the owner and than he rents it again of the second rental is an extension of the first rental and he is Patur or maybe since he borrower it in between it is it an extension of the first rental and he is Chayav.
9. These Dinim apply in the reverse when the borrower is returning the cow to the owner, if he send the cow to the owner with his son servant or Shali'ach or with the son servant or Shali'ach of the owner and it die son the way the borrower is Chayav, but if the owner told him to send it or the borrower notified the owner that he was ending it and the owner told him to go ahead and send it if it dies on the way the borrower is Patur.
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BRIEF INSIGHT
MODEH B'MIKTZAS
If someone claims that his friend owes him a hundred Zuz and his friend admits he owes fifty and on the other fifty he says he doesn't know since he can't swear a Shevu'as Modeh b'Miktzas he must pay the other fifty. Tosfos says when someone is suspected to swear falsely the Din also should be that since he can't swear he should be obligated to pay, however the Chachamim decreed that the claimant swears instead and collect his claim. The reason we don't say in that case that since he can't swear he pays is because a person could potentially take advantage of someone who is suspect to swear falsely and he can lend him one Zuz and than claim everything he owns and the he will admit to one Zuz and deny the rest and since he can't swear the claimant will collect everything. However, on this case that it is not a concern because it is only the circumstances of this particular case that the defendant can't swear and therefore he can't be taken advantage of.
QUICK HALACHAH
BORROWING AND RENTING
If someone borrows a cow with the owner and he subsequently rents the same cow without the owner he is Patur because the rental is an extension of the borrowing. But if he rents it with the owner and than he borrows it without the owner or if he borrows it with the owner and than he rents it without the owner and than he borrows it again without the owner, or if he rents it with the owner and than he borrows it without the owner and than he rents it again without the owner all of these cases are a Safek if they have a Din of Shemirah with the owner. According to some opinion if he rented it with the owner and than he borrowed it without the owner it is regarded as Shemirah with the owner. (Shulchan Aruch CM 346:14)
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