Translation:Shulchan Aruch/Choshen Mishpat/294

Paragraph 1- If the owner made a claim on his deposit and the watchman denies it, he becomes a thief on the item immediately, he would be liable for accidents and would be disqualified from testifying and swearing. When is this true? Where there are witnesses stating that at the time he denied the item was in his possession. If there were no witnesses, however, he may have misplaced it and said he will deny it and push him off until he finds the item and returns it.

Paragraph 2- If the watchman did not deny but claimed the item was stolen or misplaced in a location where witnesses are common, he must bring proof with witnesses attesting to his claim, and he would even be exempt from an oath. If he does not bring witnesses attesting to his claim, he must pay. If he is in a location where witnesses are not common, he must swear his claim is true, and we would roll in an oath that he was not negligent in guarding, and he watched it the way watchman generally watch and did not lay a hand on it prior to the incident, because had he laid a hand prior to the incident in order to obtain benefit from it, he would even be liable for an accident. There are those who say that even if there are witnesses that it was stolen or misplaced, the watchman must swear he was not negligent, and we would roll in that he did not lay a hand. If there are witnesses that he was not negligent, however, he does not have to swear that he did not lay a hand.

Paragraph 3- This that we said that where witnesses are common if he does not bring witnesses attesting to his claim he must pay, is only true for something that people would notice, such as one carrying a barrel in the market or something similar. With respect to something that people would not notice, however, such as one holding an item in his hand, where it is possible that even though there are many people there an accident occurred and nobody would realize, the law is the same as if it were a place where witnesses are not common.

Paragraph 4- If one had a garment deposited with him and he claimed that an unavoidable accident occurred and he brought witnesses that an unavoidable accident occurred on his garment, even if they do not know that this was the owner’s agreement, he would be exempt, since had he still had garment and the owner said this is not the garment, while the watchman said it is, the watchman would be believed with a heses oath, but if the owner said he is unsure and the watchman said he is sure, not even a heses oath would be required. Here, because the owner is unaware if the accident that occurred on the garment was his or not, the watchman is believed.

Paragraph 5- If the watchman made a condition that he would be exempt from swearing, his condition would be effective.

Paragraph 6- If the deposit was in an unavoidable accident, and the thief was later identified, the watchman would litigate with the thief and not swear, whether he was a paid watchman or unpaid watchman. If the watchman first swore and then the thief was identified and the watchman was unpaid, if he wants he may stand by his oath or he can litigate with the thief. If he was a paid watchman he must litigate with the thief. If Reuven provided a certain debt to Shimon and accepted a brokerage fee, and the debt deteriorated and Shimon now has to work with the government official because of the debt, and Shimon wants Reuven to have to do the work because he accepted payment for the debt, there are those who say Shimon is in the right because it is comparable to a case where the thief was identified.