Responsa for Bava Batra 140:5
לא דכולי עלמא אית להו דרב חסדא והכא בהא קמיפלגי דמר סבר אם איתא דפרעיה מימר הוה אמר ומר סבר אימור מלאך המות הוא דאנסיה
Now all authorities accept the view of the Nehardeans who say that this transaction is half a loan and half a deposit.<span class="x" onmousemove="('comment',' If money was borrowed in this way, the Rabbis regarded it as consisting of two parts, one half a loan, the profit of which went to the borrower (the lender being forbidden to take it, because it is counted as interest), and the other half a deposit, the profit of which went to the lender. Hence the law of loan applies to one half of it and the law of deposit to the other half. If therefore it was forcibly taken from the borrower, he has to pay back one half to the lender (since a borrower is responsible for a loan), but he can release himself from payment of the other half on taking an oath that it was forcibly taken from him, according to the law of deposit quoted above. In this case we suppose that the borrower died and the claim is made against his children under age. That half is to be paid back there is no question; the only doubt is whether the claimant can recover the half which is regarded as a deposit. ');"><sup>8</sup></span> May we not say then that the point in which they differ is this, that the one authority [the judges of the Exile] holds that the claimant may plead effectively, 'How comes your bond to be in my hand',<span class="x" onmousemove="('comment',' And therefore we cannot plead on behalf of the orphans that the money had been returned, seeing that the father had he been alive could not have pleaded thus. ');"><sup>9</sup></span>
Teshuvot Maharam
A. If the valuables B brought to A were undistinguishable and no one recognized them as having belonged to B's former husband, A is free from obligation for five reasons. a) Even if the valuables B brought to A were worth more than the value of her ketubah, such valuables may not all necessarily have come from the estate of her former husband, for she might have received some gifts or found a treasure. b) Were B still alive she would have been obliged to take an oath [to the effect that she did not take from her former husband more than the value of her ketubah], but now that she is dead, A is free from the obligation of taking an oath, since he is not supposed to know his wife's affairs. c) A is not even required to take the oath of an heir — that B never told him, and that he did not know that she had received from the estate of her former husband more than the value of her ketubah — since the heirs of B's former husband are not positive in their claim. The heirs, however, may pronounce the ban (herem) in the synagogue against anyone who does possess such knowledge and does not reveal it. Such ban would include A. d) Whatever a person would have retained, had he taken an oath, his heirs may retain without the necessity of taking an oath. e) Some authorities require A to take the oath of an heir; but since many great authorities absolve him from such oath, and since A is in possession of the aforesaid valuables, the burden of proof is upon the plaintiff. For similar reasons A would be free from the obligation of taking an oath, even if some of the valuables brought to him by B were distinguishable and were recognized as having belonged to B's former husband, if the valuables thus recognized were in themselves not worth more than the value of B's ketubah. But, if the distinguishable valuables are in themselves worth more than the value of B's ketubah, A must return the difference to the heirs of B's first husband.
Q. Witnesses have testified to the effect that B and her former husband, C, had made a binding agreement that in the event of the death of one party, the surviving party would share the property with the heirs. After C's death, B settled with all of C's heirs, except the youngest, D, who was born after the drawing up of the agreement. D, therefore, is now pressing his claim.
A. D was entitled to his share even though he was born after the agreement was made, for in it B did not bestow benefits on anybody; she merely relinquished her rights to C's property up to a certain extent, and D later became heir to the relinquished property. However, A may claim that B brought him nothing from C's estate, or he may contend that B had already settled with D, and be free from obligation for the reasons enumerated above.
SOURCES: Am II, 17; cf. Hayyim Or Zarua, Responsa 86; ibid. 165; ibid. 191.
Teshuvot Maharam
A. A is entitled to half the amount he advanced to B, if he takes an oath that he received no money from B in payment of that claim (cf. B. B. 70b–71a).
SOURCES: Pr. 846.