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BAVA KAMA 107 (20 Nisan) - Dedicated by Mr. Martin Fogel of Carlsbad, California, in memory of his father, Yaakov ben Shlomo Fogel, on the day of his Yahrzeit.
R. Chiya Bar Yosef holds that a Shomer who claims the object he is guarding was stolen must swear even if he was not Modeh b'Miktzas.
Rabah says that a person who denies completely that he borrowed money is Patur from a Shevu'ah Min ha'Torah because a person doesn't have the Chutzpah to deny the loan to the lenders who did him a favor. (1)
The Torah obligates a Modeh b'Miktzas to swear because he wants to admit the entire loan but he admits it only partially in order to buy some time. (2)
Rami Bar Chama says that a Shomer and a Sho'el are not Chayav a Shevu'ah unless they are Modeh b'Miktzas
It is a Machlokes Tana'im if a renter is given the status of a Shomer Chinam or if a Shomer Sachar. (3)
R. Chiya Bar Yosef holds that a Shomer who claims that the object he was guarding was stolen is only Chayav Kefel if he used the object, while R. Yochanan argues
R. Yochanan says if a Shomer swears that the object he was guarding was lost and than he swears that it was stolen and witnesses testify that it is still in his possession he is Patur from Kefel. (4)
R. Sheshes says that a Shomer who claims that the object he was guarding was stolen if he used the object he is Patur from Kefel. (5)
A Shomer who claims the object he was guarding was stolen must take three Shavuos; that he did not use it, that it is not in his possession and that he was not negligent.
A BIT MORE
1. Therefore he must be saying the truth. However a Shomer does have the Chutzpah to deny receiving a Pikadon and therefore he must swear even if he denies the entire Pikadon.
2. The Torah obligates him to swear in order to prompt him to admit the entire loan.
3. A Shomer Sachar is Chayav if it is stolen or lost while a Shomer Chinam is Patur.
4. Since he already swore once he was Yotzei his Chiyuv Shevu'ah and consequently the second Shevu'ah does not have significance.
5. Once he uses the object he is considered a Ganav and he is Koneh the object with a Kinyan Geneivah and at the time that he claimed it was stolen it already belonged to him and therefore he is not Chayav Kefel.
ONE SHEVU'AH AFTER ANOTHER
R. Yochanan says if a Shomer swears that the object he was guarding was lost and than he swears that it was stolen and witnesses testify that it is still in his possession he is Patur from Kefel since he was already Yotzei his Chiyuv Shevu'ah with the first Shevu'ah. The Bach asks that previously the Beraisa stated that if someone swears falsely five times he is Chayav a Korban Shevu'ah for each time even though he was already Yotzei his Chiyuv Shevu'ah. The Bach answers that a Shomer is only Chayav Kefel if Beis Din makes him swear and Beis Din is not Mechayev him a second Shevu'ah once he already swore. However the Chiyuv of a Korban Shevu'ah applies even if he swears on his own and therefore even if he already swore once he is Chayav a Korban Shevu'ah for every additional Shevu'ah.
Every Shomer who swears a Shevu'as ha'Shomrim includes three things in his Shevu'ah; that he guarded it properly and such and such occurred, that it is not in his possession and that he did not use the object prior to the occurrence that dismisses him from paying. If the Shomer chooses to pay for the object he must swear that it not in his possession and he includes in his Shevu'ah the value of the object. (Shulchan Aruch CM 295:2)
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