It was taught "Im Ba'alav Imo Lo Yeshalem" - does he need to swear?

Answer #1 (R. Zeira): He must swear.

Answer #2 (R. Chaninah and R. La): He does not swear.

Support (for R. Chaninah and R. La - Beraisa): Breakage, Shevuyah and death, a Shomer Sachar or renter is exempt, and a borrower is exempt b'Ba'alim, and liable Lo b'Ba'alim;

Theft and loss, which are liable for a Shomer Sachar or renter, all the more so for a borrower, b'Ba'alim is exempt and Lo b'Ba'alim is liable! One who will say that he must swear, he must hold that he must pay! (R. Zeira holds that the Torah merely added Chiyuvim for a borrower to pay for Ones Lo b'Ba'alim. Everything else follows what is written. If a borrower must swear about theft or loss b'Ba'alim, since the Torah taught the exemption of b'Ba'alim only for Ones, he must even pay. However, the Beraisa learns from a Kal v'Chomer. Due to Dayo, theft or loss for a borrower cannot be more stringent than Ones, for which he is exempt!)

(R. Chaninah citing R. Yudan): [The Seifa of] the Beraisa supports R. Zeira!

The Torah was stringent about a borrower - b'Ba'alim he is exempt, and Lo b'Ba'alim he is liable. The Torah was lenient about a Shomer Sachar - all the more so b'Ba'alim he is exempt, and Lo b'Ba'alim he is liable!

If you will say that this is needed for Shevu'ah [to exempt Lo b'Ba'alim], it should have taught so regarding a Shomer Chinam and Shomer Sachar [and I would not be more stringent about a borrower! Rather,] it is needed only for payment (but it does not exempt from Shevu'ah)!

Question (against R. Zeira): A borrower - if he is b'Ba'alim, he swears. If he is not b'Ba'alim, he pays. A Shomer Sachar, if he is b'Ba'alim, he swears. If he is not b'Ba'alim, he does not pay. A Shomer Chinam, whether b'Ba'alim or not b'Ba'alim, he swears. (In some cases a Shomer Chinam and borrower swear for theft or loss. Why did the Mishnah say that a borrower pays for everything and a Shomer Chinam swears about everything? B'Ba'alim, they are the same!)

Answer: [Surely, there are matters for which a borrower swears. The Mishnah means that] there are matters for which a borrower pays and a Shomer Sachar swears. There are matters for which a Shomer Sachar pays and a Shomer Chinam swears.

Version #1 - Question: Matters for which a Shomer Sachar swears, a Shomer Chinam should be exempt! Why do you teach that a Shomer Chinam [swears for Ones] whether b'Ba'alim or Lo b'Ba'alim? (Perhaps we descend one level, and he does not even swear!)

Version #2 - Question: Why do you teach that a Shomer Chinam and Shomer Sachar [swear even] b'Ba'alim? (Perhaps just like b'Ba'alim is one level more lenient for a borrower, and he swears and does not pay, so a Shomer Chinam and Shomer Sachar, who swear about Ones Lo b'Ba'alim, are exempt from Shevu'ah b'Ba'alim?)

Version #1 - Answer (R. Avin): "Al Kol Davar Pesha" [teaches whether b'Ba'alim or Lo b'Ba'alim].

Version #2 - Answer (R. Mana): Do we not find that the Torah equated theft or loss for a borrower? (He pays no more than a Shomer Sachar.) Therefore, we can equate a Shomer Chinam and Shomer Sachar for breakage, Shevuyah and death! (Just like there are only two laws of theft or loss, i.e. a Shomer Chinam swears and others pay, there are only two laws of Ones, i.e. a borrower pays and others swear. We explained this like R. MEIR SIMCHAH.)

(Beis Shamai say (Bava Metzi'a 3:12) that one who said that he will be Shole'ach Yad in a deposit is considered a Gazlan.) What is Beis Shamai's reason? They learn from "Al Kol Davar Pesha."

Question: (Beis Hillel hold that he is not liable until he is Shole'ach Yad.) How do Beis Hillel answer the reason of Beis Shamai? [It could have said] Pesha - [why does it say] "Al Kol Davar Pesha"?

Answer: [This teaches about] one who was Shole'ach Yad through a Shali'ach. (Normally, Ein Shali'ach l'Devar Aveirah. Here, the Torah taught that Yesh Shali'ach l'Devar Aveirah.)

Question (R. Yosi bar Chanina): [The Seifa of that Mishnah says that if a Shomer tilted a barrel of wine and took a Revi'is, and the barrel broke, he pays only for a Revi'is. If he lifted the barrel and took a Revi'is, he pays for all of it. Does it mean [even if he intended] to take, [or only if] he took? (Does Shelichus Yad apply only if there was a loss to the deposit?)

Remark: R. Hoshayah taught that [the Reisha is only if] it broke, but if it soured, he pays for all of it. Is it not due to moving it?! (Moving wine makes it sour faster.)

(R. Shmuel citing R. Avahu citing R. Lazar): Shelichus Yad said about a Shomer Chinam is liable only there is Chisaron (some is missing).

Question (R. Shmuel to R. Avahu): What was said - Chisaron, or even without Chisaron?

Answer (R. Avahu): Is this not R. Yosi bar Chaninah's question - [does it mean if he intended] to take, [or only if] he took?

Consequence #1: If you will say to take, [he is liable] even without Chisaron. If you will say that he took, he is not liable until there is Chisaron.

Consequence #2: If you will say to take, if he returned it, whether to its place or to another place, he is exempt. If you will say that he took, if he returned it to its place he is exempt, but to another place, he is liable.

(R. Acha citing R. Yochanan): Shemirah was taught about a Shomer Chinam, and about a Shomer Sachar. The Shemirah taught about a Shomer Chinam is unlike that of a Shomer Sachar;

The Shemirah taught about a Shomer Chinam, if he guarded it as much as needed, he is exempt. The Shemirah taught about a Shomer Sachar, we estimate only based on him;

Even if he surrounded it with an iron wall, we do not consider it as if he [was there and] guarded;

Rather, [we estimate. Had he been there,] if he could have saved, he is liable. If not, he is exempt." We do not say "had someone else been there, he could have saved" [to obligate him. We explained this like ZAHAV HA'ARETZ.]

(R. Lazar citing R. Hoshayah): Shelichus Yad was taught about a Shomer Chinam, and Shelichus Yad was taught about a Shomer Sachar. The Shelichus Yad taught about a Shomer Chinam is unlike that of a Shomer Sachar;

Shelichus Yad was taught about a Shomer Chinam, he is not liable until he does Meshichah. Shelichus Yad was taught about a Shomer Sachar, once he put his staff or sack on [the animal], he is liable.

R. Yosi bar Nehurai heard this, and said "I do not accept this. Rather, both of them, he is not liable until he does Meshichah."

Support (R. Ami citing R. Lazar): R. Hoshayah taught [a Beraisa] so (like he said above). If Shelichus Yad were not taught taught about a Shomer Chinam, for it is not needed, I would have learned from a Shomer Sachar;

A Shomer Sachar, the Torah was stringent about him - he is not liable until he does Meshichah. A Shomer Chinam, the Torah was lenient about him - all the more so he is not liable until he does Meshichah!

Why was Shelichus Yad said about a Shomer Sachar, if it was not needed? It is to be stringent about a Shomer Sachar. Once he put his staff or sack on it, he is liable.

Objection (R. Yosi): If you will say so, it turns out that the Lamed (Shomer Chinam, which is learned from Shomer Sachar, the Melamed) teaches about the Melamed to be stringent about it;

[This is wrong, for] one can say [to reject it] if a Shomer Sachar, about whom the Torah was stringent, is not liable until he does Meshichah, a Shomer Chinam, about whom the Torah was lenient, even if he did Meshichah he is exempt! (Therefore, Shelichus Yad written about Shomer Chinam is not extra);

Rather, the Torah did not need to write Shelichus Yad about a Shomer Sachar. It is not needed, for I would have learned from a Shomer Chinam;

A Shomer Chinam, about whom the Torah was lenient, is not liable until he does Meshichah. A Shomer Sachar, about whom the Torah was stringent, once he did Meshichah he is liable!

Rather, the Torah did not need to write Shelichus Yad about a Shomer Sachar, for it was not needed. [It was written] to be stringent about a Shomer Sachar. Once he put his staff or sack on it, he is liable.

(Mishnah): If Reuven claimed his deposit from Shimon, a Shomer Chinam, and Shimon said that it died, and really, it was broken, Nishbah (taken captive), stolen or lost;

Or, he said that it broke, and really, it died, was Nishbah, stolen or lost. Or, he said that it was Nishbah, and really, it died, broke, or was stolen or lost. Or, he said that it was stolen, and really, it died, broke, was Nishbah or lost. Or, he said that it was lost, and really, it died, broke, was Nishbah or stolen or lost...

If Reuven imposed this oath on him, and he answered Amen, he is exempt.

(Gemara - Rav): He is exempt [from the Korban] for Shevu'as ha'Pikadon [since he did not deny money, for he is exempt for any Ones], and he is liable for Shevu'as Bituy.

(R. Yochanan): Since there is a Mitzvah to appease [the owner], he is not liable for Bituy.

Question: Does Rav not hold that there is a Mitzvah to appease him?

Answer: He should appease him with Emes, and not with Sheker.

Question (R. Yochanan): [If a woman accepted] Shevu'as Sotah (and she was really guilty), is she liable for Shevu'as Bituy? (E.g. she did not die because also her husband was guilty, or due to merits she did not die immediately.)

Question: What is the case?

If she was Shogeg about the Aveirah and the Shevu'ah, there is no Sotah! (She is permitted to her husband, and one is never liable for Bituy if he thinks that he swore Emes!)

If she was Mezid about the Aveirah and the Shevu'ah, there is no Korban [for Mezid]!

Remark: Rav [who said that he is exempt for Shevu'as ha'Pikadon and liable for Bituy] holds like R. Akiva (who says that one is liable for Bituy for the past. This belongs above, before R. Yochanan's question.)

Question: How does R. Yochanan hold? (Whether she was Mezid or Shogeg, surely she is exempt!)

Answer: He holds like R. Meir. R. Meir said [that she swears also about the future -] Amen that I did not become Tamei, Amen that I will not become Tamei.

Disclaimer: This is difficult. (The Halachah does not follow R. Meir. Also, the Shevu'ah does not apply in the negative and positive.)

(Mishnah): If he said "where is my ox?", and Shimon (a Shomer Chinam) said "I do not know that what you discuss (you did not deposit with me)!", and really, it died, was broken, Nishbah, stolen or lost, if he imposed this oath on him, and he answered Amen, he is exempt.

If he said "where is my ox?", and he said "it was lost", and he imposed this oath on him, and he answered Amen, and witnesses testify that he ate it, he pays the principal. If he admitted by himself, he pays the principal, Chomesh and brings an Asham.

If he said "where is my ox?", and he said "it was stolen", and he imposed this oath on him, and he answered Amen, and witnesses testify that he stole it, he pays Kefel. If he admitted by himself, he pays the principal, Chomesh and brings an Asham.

If he said to someone in the market "where is my ox that you stole?", and he said "I did not steal", and witnesses testify that he stole it, he pays Kefel. If he [also] slaughtered or sold it, he pays four (if it would have been a Seh,) or five (in our case of an ox).

If he saw witnesses coming [to Beis Din] and he said "I stole, but I did not slaughter or sell", he pays only principal.

(Gemara - R. Yochanan): (Our Mishnah implies that there is Chomesh for a claim of theft only when he admitted by himself, without witnesses.) Also a Beraisa teaches so;

If [a Shomer Chinam] claimed that it was lost, and he swore to him and [later] admitted, whether before witnesses came or after witnesses came, he pays the principal, Chomesh and brings an Asham;

If he claimed that it was stolen, and he swore to him and [later] admitted, if [he admitted] before witnesses came, he pays the principal, Chomesh and brings an Asham. If [he admitted] after witnesses came, he pays Kefel, brings an Asham, and he fulfills Chomesh amidst the Kefel. R. Yakov says so;

Rabanan (to R. Yakov): Where do we find an Asham [for Gezel] without a Chomesh?!

R. Yakov: If he swore, swore [against about the same principal] and swore, we find Asham [for the latter SHEVUOS] without a Chomesh. (If he swore four times, the Chomeshim equal Kefel; he fulfills the Chomeshim through paying Kefel. We explained this like NO'AM YERUSHALMI.)

Rabanan: Chomesh applies to the principal, but not to SHEVUOS. (There is only one Chomesh for one principal, even if he swore many times.)

Another matter - "v'Shilem Oso b'Rosho v'Chamishiso Yosef Alav" (Chomesh applies only to money paid b'Rosho, i.e. only principal).

Observation (R. Zeira): [This implies that Rabanan, who hold that there is no Asham without Chomesh, exempt from Asham when there is Kefel. Also] a Beraisa teaches so! If he claimed that it was lost, and separated a Korban, since if he admitted [even] after witnesses came, it would be Kadosh, also now it is Kadosh. (HAGAHOS R. DINAR - separation is like partial admission);

If he claimed that it was stolen, and separated a Korban, since if he would admit after witnesses came (he pays Kefel, but not Chomesh), it would not be Kadosh, also now it is not Kadosh. According to R. Yakov, it is Kadosh. (We explained this like NO'AM YERUSHALMI.)