'I lent you a <i>sela'</i> on it and it was worth a <i>shekel</i>, whilst the other maintains, 'Not so; you did lend me a <i>sela'</i> on it, and it was worth three <i>denarii</i>;'<span class="x" onmousemove="('comment',' One sela' = 4 denarii.
');"><sup>13</sup></span> he is liable [to an oath].<span class="x" onmousemove="('comment',' Since there is partial admission of indebtedness. The Gemara discusses below the meaning of 'he.'
');"><sup>14</sup></span> [If the debtor pleads,] 'You did lend me a <i>sela'</i> on it, whilst it was worth two;' and the other replies, 'Not so: I lent you a <i>sela'</i> on it and it was worth a <i>sela'</i>;' he is free [from an oath].<span class="x" onmousemove="('comment',' V. n. 2 which applies here too, though the debtor is now the claimant.
');"><sup>15</sup></span> 'You did lend me a <i>sela'</i> on it and it was worth two,' whilst the other replies, 'Not so: I lent you a <i>sela'</i> on it and it was worth five <i>denarii</i>,' he is liable [to an oath]. Now, who must swear? He who has the bailment [i.e., the creditor], lest the other swear and then this one produce the bailment.<span class="x" onmousemove="('comment',' Because it is derogatory to the institution of the oath to swear when a matter may be practically proved (Tosaf.); Mishnah, Shebu. 43a.
');"><sup>16</sup></span> To what does this<span class="x" onmousemove="('comment',' The last passage in the cited Mishnah.
');"><sup>17</sup></span> refer? Shall we say, to the second clause; but that [the oath rests upon the creditor] follows from the fact that it is he who makes partial admission!<span class="x" onmousemove="('comment',' Why then state a different reason?
');"><sup>18</sup></span> — But, said Samuel, it refers to the first clause. How can it refer to the first clause?<span class="x" onmousemove="('comment',' Seeing that there no oath is taken.
');"><sup>19</sup></span> — He means the second subsection of the first clause, [viz.,] 'I lent you a <i>sela'</i> on it and it was worth a <i>shekel</i>,' whilst the other maintains, 'Not so: you did lend me a <i>sela'</i> on it, and it was worth three <i>denarii</i>:' he is liable [to an oath]. Now, the onus of the oath lies upon the debtor,<span class="x" onmousemove="('comment',' Since he is the defendant who makes partial admission. ');"><sup>20</sup></span> yet the Rabbis ordered that the creditor should swear, lest this one [sc. the debtor] swear and then the other produce the pledge. But if
Tosafot on Bava Metzia
For he (the lander) may take out the collateral... Rashi explains that will make him (the borrower) disquilifed from testimony and from swearing, (if he is proven wrong after he swore).
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Tosafot on Bava Metzia
this is difficult to Rabanu Tam, for is this is the reason (that the borrower may be proven wrong) would only encourage the borrower to be more precise when he swears, so he should not be able to be proven wrong, and why would we establish a rule to help a lier (by placing the pledge on the lander, so the borrower does not get caught lying). and if your concern is that possibly the borrower will swear in truth (about the collaterals value) and the lander will take out a ruined collateral and that would make it seam like the borrower lied). if so (that we are concerned about the collateral being ruined and decreasing in value) why does the Gemera suggest later on that the borrower can try and find the thief, if that wont prove he is right. (for we are concerned that their is a decrease in value). so if are concern is that it may be valued more then the borrower swears, this will only lead for him to be careful with his pledge?
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Tosafot on Bava Metzia
so it seems to Rabanu Tam like Rabanu Channel for (if the lander takes out the collateral) it seems like the borrower swore for no reason. and its a disgrace to swear when its possible that we will find out the value when the lander takes it out, but if the lander will swear he will only do it once he is sure that the object wont be found.
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Penei Yehoshua on Bava Metzia
on Rashi the children paid: (Rashi points out) and the father did not have chance to say he will pay, before he died (till here is rashi)... (Rashi) needs to explain (the sequance of events) in this way, for if father had said he will pay (before his passing), it would be simpel that they son get the rights to double. except in a case where they clerly backtracked (on their fathers words) and said they will not pay... however (says the Penei Yehoshua) it is impossible to explain that the case is that the father passed away before it (the product) was stolen, for if so (that the father passed away before the time of the theft) the responsibility to safeguard the product has left (from the father-watchman) and the hairs have no obligation to pay (in a case of theft), and since they are exempt from payment, even in a case that they paid on their free will, they were not rewarded with the double.
