Reuvain gives an object to Shimon to watch as a shomer chinam. Shimon does not have the object and swears to Reuvain that it was stolen. Afterwards, Shimon (the former shomer) finds the thief and adjures him. The thief swears that he did not steal it, but then later confesses that he did (no witnesses). Is he obligated in chomesh and asham? My preliminary search only found that he is obligated in kefel to the shomer if witnesses prove his guilt - Please provide sources.
Eric Haas, Beersheva, Israel
I think it would depend on whether the Shomer pays the owner despite having sworn to him already. Since he swore and since he is a Shomer Chinam, he doesn't have to pay the owner and go after the thief himself (see Gemara Bava Kama 108b starting with "Nignevah b'Ones v'Hukar haGanav", and Rashi there, and Rambam Hilchos She'eilah u'Pikadon 8:6). If he takes that option, then he has no business adjuring the thief. It's not his business anymore. The Rambam (Hilchos Shevu'os 7:6) says that only if the thief swears to the Ba'al ha'Mamon or his Shali'ach would there be a Din of Chomesh and Asham. The Shomer is not the Ba'al ha'Mamon. I don't think the Beis Din would even allow him to be Tove'ah a Shevu'ah from the Ganav. If on the other hand, he pays the owner then he would now be considered the Ba'al ha'Mamon and the Ganav would be obligated in Chomesh and Asham.
Kol Tuv,
Yonasan Sigler