Translation:Shulchan Aruch/Choshen Mishpat/296

Paragraph 1- If one deposits or rents out to another with or without witnesses, the same law would apply. Once the watchman admits that he received the deposit, borrowed or rented, he must swear the watchman-oath because we do not use the principle of migu to exempt from an oath, but only to exempt from paying. There are those who say that we do use migu to exempt from an oath, but this particular migu is not a good one and that is why we don’t use it.

Paragraph 2- If the watchman claims the owner never deposited anything with him or he did not borrow or rent from him, or he says it is true the owner deposited with him or that he borrowed or rented from him, but he returned it, however, he would take a heses oath and be exempt. Even if the owner deposited, loaned or rented out with a document, the watchman is believed with an oath while grasping a holy item to say he returned it with a migu that he could have said it was stolen in the case of an unpaid watchman, an unavoidable accident occurred in the case of a paid watchman or the item died because of work in the case of a borrower. Just as had he made that claim he would be required to take a biblical oath while grasping a holy item, so too when he claims he returned it must he swear a biblical-type oath.

Paragraph 3- When is this true? Where the watchman was able to claim an unavoidable accident occurred and we do not require him to prove his claim. If he was obligated to bring proof to his claim, however, such as where it was in a place where witnesses are common, he would not be believed to say he returned it. Rather, the party possessing the document would swear while grasping a holy item that he did not return the item, and the watchman would pay him. This assumes the watchman says the owner should swear that he did not return it. In the first instance, however, we would tell the watchman to go pay.

Paragraph 4- If the watchman comes to return the deposit and the owner says this is not his, but belongs to someone else, or that it was whole and now broken, new and now used or 100 seah and now 50, and the watchman says this that I am giving you is what you deposited, the watchman would take a heses oath like anyone else who swears because not every watchman swears the biblical watchman-oath; only in a situation where the watchman admits to the actual deposit, such as where he says it was deposited but claims it was stolen, misplaced or captured. If he says this is the item you loaned to me, rented to me or that I was paid to watch, however, and the owner says it was not this item but a different item or it changed from what it was, the watchman would take a heses oath or a biblical oath if he partially confessed. How so? If the owner says he deposited 100 seah by him and the watchman says it was only 50, the watchman would take a biblical oath because he partially confessed, but not because of a watchman-oath. If the owner says he deposited 100 kur of wheat and the watchman says it was 100 of barley, the watchman would take a heses oath like anyone else who has to swear on such a claim.

Paragraph 5- An unpaid watchman can make a condition to be exempt from an oath, a borrower can exempt himself from paying, and likewise the owner can make a condition that an unpaid or paid watchman would be liable for everything like a borrower because any condition on a monetary matter or a monetary oath is valid. No kinyan or witnesses are required.

Paragraph 6- If the owner claims there was a condition and the watchman says there was no condition, the watchman would take a guardian oath and roll in that there was no condition.

Paragraph 7- If the owner claims he deposited and the watchman says he only said leave it for yourself but he never made himself a watchman, the watchman would take a heses oath that he only accepted it in his manner and would include in the oath that he did not lay a hand on it or destroy it with his hands or cause it to be destroyed, in which case he would be liable.

Paragraph 8- If the watchman admits he was negligent but claims they had a condition that he did not need to watch it the way watchmen typically do, and the owner says there was no such condition, even if the deposit was given in the presence of witnesses who testify that this deposit was given to this watchman, but we don’t know if there was a condition or not, the watchman is believed because since he could have said he watched it the way watchman typically do and an unavoidable accident occurred, he is believed to say they made a condition. Thus, the watchman would swear that he did not lay a hand, that it is not in his possession, and that they had a condition. If the owner brings witnesses that the watchman was negligent, the watchman is liable and is not believed to claim there was a condition, because there is no migu. This is only where the witnesses know he was a watchman on the item. Otherwise, even if he was negligent he would be believed with a migu that he could have said I was not a watchman because I just said “here is my house in front of you.”