Responsa for Bava Kamma 126:4
קתני מיהא בטוען טענת גנב דמשלם תשלומי כפל אבל בטוען טענת אבד לא משלם תשלומי כפל ואפי' טוען טענת גנב בשבועה הוא דמשלם תשלומי כפל אבל שלא בשבועה אינו משלם תשלומי כפל
but if he admits [this] of himself, he has to pay the principal together with a fifth and a trespass offering.<span class="x" onmousemove="('comment',' In accordance with Lev. V, 21-25. ');"><sup>7</sup></span> [If the depositor says] 'Where is my deposit?', and the bailee answers 'It was stolen!', [whereupon the depositor says] 'I call on you to swear', and the bailee says, 'So be it',<span class="x" onmousemove="('comment',' Which amounts to an oath; cf. Shebu. 29b. ');"><sup>5</sup></span>
Teshuvot Maharam
Q. (1) A made a contract with B and gave him a pledge as security that he would fulfill the contract and said, "If I do not carry out the terms of the contract the pledge shall be yours."
(2) C went surety for A to B promising to pay him a certain amount if A should break the terms of the contract.*That two questions were asked of R. Meir, one regarding security, and another regarding a surety, is seen from the fact that towards the end of this Responsum (in the Pr. 130 version which deals with a pledge) R. Meir uses the phrase וכ׳׳ש ערב לא משתעבד מק׳׳ו המשכון עצמו פטור כ׳׳ש הערב, which seems to indicate that the question was also about a surety. Furthermore, Responsum Cr. 34, gives exactly the same answer as Pr. 130, regarding a surety. Do such transactions fall under the rule of asmakta (אסמכתא)?
A. Both cases fall under the rule of asmakta and are, therefore, not binding.
SOURCES: Cr. 34, Pr. 130; L. 356; Asher, Responsa 108, 27.
(2) C went surety for A to B promising to pay him a certain amount if A should break the terms of the contract.*That two questions were asked of R. Meir, one regarding security, and another regarding a surety, is seen from the fact that towards the end of this Responsum (in the Pr. 130 version which deals with a pledge) R. Meir uses the phrase וכ׳׳ש ערב לא משתעבד מק׳׳ו המשכון עצמו פטור כ׳׳ש הערב, which seems to indicate that the question was also about a surety. Furthermore, Responsum Cr. 34, gives exactly the same answer as Pr. 130, regarding a surety. Do such transactions fall under the rule of asmakta (אסמכתא)?
A. Both cases fall under the rule of asmakta and are, therefore, not binding.
SOURCES: Cr. 34, Pr. 130; L. 356; Asher, Responsa 108, 27.
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