Explanation #3: Also Rivam explained so, but he added to explain that they argue even when there is no decrease;

According to Rav, the Kli broke in the borrower's Reshus. We suggest to him to pay the value of a proper lamp. We do not teach him to pay the shards;

In any case, if he wanted to pay the shards [towards] the calculation [of the value of a proper lamp], he may.

However, according to Rav Kahana and Rav Asi, we teach him to pay the shards, since they are in the lender's Reshus.

Implied question - Citation (Yerushalmi): What is the source that we do not estimate for a Ganav and Gazlan? R. Aba bar Mamal said "Chayim Shenayim Yeshalem", and not dead ones;

Citation (cont.): This teaches about Geneivah. What is the source for Gezeilah? R. Bun said, we learn from "v'Heshiv Es ha'Gezeilah Asher Gazal."

Answer: This does not mean that he literally pays another living [animal], and not bran;

Rather, "Chayim Shenayim Yeshalem" teaches that if they are still alive and they became cheaper, he will return them like they are, but if dead animals became cheaper, he pays for the lost value.

Alternatively, "Chayim" teaches that he pays completely, without deducting, like "Achyei (revive) the principal like what he stole."

Support: The Yerushalmi in Kidushin connotes like this. It says 'what is the source that the owner deals with the Neveilah? Aba bar Mamal said "Chayim Shenayim Yeshalem", and not dead ones.' This connotes that he discusses decrease of the Neveilah.

Consequence: R. Elazar argues in Bava Kama (11a) and says that we evaluate for thieves or robbers. We can prove that he holds that Shinuy does not acquire, therefore the owner suffers the decrease.

Question: In Bava Kama (68a), R. Elazar himself said that in a Stam case of Geneivah, the owner despairs. (The Torah equates Shechitah and the sale of a stolen animal.) Just like Shechitah accomplished something, also a sale accomplished something;

How did Shechitah accomplish something, if Shinuy does not acquire?! This connotes that he accomplished something, i.e. he acquired through Shinuy.

Answer #1: "He accomplished something" does not mean a Kinyan. Rather, he ruined and caused monetary loss through Shechitah of the animal.

Answer #2: He holds that Shinuy does not acquire when it died by itself, or a lamp that broke by itself. However, an overt act like Shechitah acquires through Shinuy.

Question: What was the question? It truly died due to work!

Answer: He asks whether he deviated through taking it to a place where many mice are found. However, he need not guard it so they will not kill it.

Question: Why must [the Gemara] say that it died in the thief's house?

Answer: Those who thought that it died through negligence erred about this.

Explanation: The Mishnah teaches not only this, rather, even this;

[They divide] not only when he borrowed it for half a day, and rented it for half a day, and it is a total Safek. One can err, for it is all in one day, and it is considered Drara of money (i.e. even without their claims, Beis Din has a Safek - Tosfos above (2b DH v'Yachloku);

Therefore, the Seifa teaches that if this one says "I do not know", and this one says "I do not know", they divide.

Rather, even if he borrowed it for today, and rented it for tomorrow, we should say that they divide.

And not only when there is one cow, which is a big Safek [they divide], rather, even when there are two cows, they divide.

Observation: The Gemara establishes Rav Nachman's law when there is another reason why he must swear. (Through Gilgul, the depositor can demand that he swear also that the rented one died. Since he cannot swear, he must pay.)

Question #1 (Ri): Why must we establish it like this?

Even without this, he should be obligated a Shevu'ah through Gilgul, for the owner tells the renter "swear to me that it died normally", and through Gilgul he must swear that the rented one died;

He cannot swear, for he says that he does not know, and since he cannot swear, he must pay!

Strengthening of Question #1: The Gemara explains like this our Mishnah, which teaches "this one says that the borrowed one died, and this one says that the rented one died, he must swear through Gilgul";

Question #2: Also in the middle case, the renter says that the rented one died, and the other (the owner) says "I do not know", he is exempt;

Why is he exempt? He should say to him "swear to me that it died normally", and through Gilgul he must swear that the rented one died!

Even though the owner claims amidst Safek, he can make the renter swear through Gilgul mid'Oraisa;

We learn from Sotah, in a Beraisa in Kidushin (28a).

Question #3: Also in the Seifa, this one says "I do not know", and this one says "I do not know", why do they divide? We should say that since he cannot swear via Gilgul, he must pay!

Answer (Ri): We are Megalgel only when the defendant is Vadai, similar to Sotah, in which she claims Vadai (I am innocent);

However, in the Reisha and Seifa, that the defendant claims "perhaps", we are not Megalgel, for it is not like Sotah.

Question: However, the middle case is difficult, for the renter claims Vadai!

Answer #1 (Ri): The case is, the lender believes the borrower's claim that it died normally. He does not obligate him to swear about this.

Implied question: This is unlike the [very] Seifa, "this one says that the borrowed one died, and this one says that it was the rented one", which discusses when he does not believe him!

Answer: It is normal in the Seifa, that the lender sees that the renter lies, it is not common to believe him;

However, in the middle case, it is common to believe him, since he does not know whether or not he lies.

Answer #2: The entire [Mishnah] discusses when the lender knows that it died normally;

In the Seifa, he pretends not to know, for he wants to make him swear through Gilgul that the rented one died, in order that he will admit to the truth, for he knows surely that the borrowed one died;

However, in the middle case, he does not want to make him swear, and to be Megalgel on him, for he himself is unsure, and it can be that he (the renter) says the truth.

Question: How are we ever Megalgel a Shevu'ah? Even when the defendant claims Vadai, he should be believed through a Migo, that if he wanted, he could have said "I do not know"!

Answer #1: This is not a Migo, for one does not willingly say that he is unsure, for then it looks like the claimant says the truth, for he claims Vadai, and [the defendant] says "I do not know."

Answer #2: We are Megalgel when the claimant claims "perhaps" only in a matter that seems a little [there is reason to say that it is true];

E.g. the claim [against] sharecroppers and overseers in Shevuos (48b), for they commonly benefit from their colleagues, because they rationalize, like it says there;

Also a Sotah, there is circumstantial evidence [that she sinned], for he warned her, and she was secluded. There is concern lest she was Mezanah also during Eirusin.

Therefore, in our Mishnah we are Megalgel only through a Vadai claim.

Question: What is the source that we are Megalgel based on a Vadai claim even for something that does not seem that it is true, since we learn Gilgul Shevu'ah from Sotah?

Answer: We learn in Kidushin (28a) from a Kal va'Chomer from Sotah, which one cannot claim [demand that she drink or forfeit her Kesuvah] through one witness;

Afterwards, it says that we find [Gilgul based on a] Vadai. What is the source for Safek?

Explanation: Even though regarding Sotah, we are Megalgel based on a Safek, that is because the primary Shevu'ah comes based on a Safek claim. Therefore, we are Megalgel from Safek, which is like the primary [Shevu'ah];

However, regarding money, the primary Shevu'ah comes only through a Vadai claim. What is the source that we are Megalgel from Safek?

Citation (28a - Tana d'Vei R. Yishmael): The Torah discusses a Shevu'ah outside [the Mikdash, i.e. for monetary cases], and a Shevu'ah inside (Sotah)...

Now, we do not need the Kal va'Chomer. Rather, we learn the entire matter from the Gezeirah Shavah "Shevu'ah-Shevu'ah";

Now, we learn that we are Megalgel even on a Safek claim, like Sotah, even though in monetary matters it is unlike the primary Shevu'ah.

We learn also that we are Megalgel based on a Vadai claim, even in a matter that does not seem [a reason to assume that the claim is true], since this is [Vadai] like the primary Shevu'ah, like Sotah, for we are Megalgel like the primary Shevu'ah.

Implied question: In every Shevu'as ha'Shomerim, the depositor makes him swear amidst Safek, for he (the depositor) does not know whether Ones occurred!

Answer #1: Here, he does not know if the borrowed animal died, he may not make him swear amidst Safek, for it is as if the lender says "I am unsure whether or not I lent to you." The borrower need not swear due to such a claim.

Answer #2: Here, even if the lender says "I am sure [that the borrowed animal died" the borrower] swears only through Gilgul [because he totally denied what was claimed].

Question: According to Rav Huna and Rav Yehudah, who say that Bari v'Shema Bari Adif (if one litigant is Vadai and the other is unsure, the former wins), why do we need to teach that here that he is exempt?

In the Reisha, we learn that Bari is Adif to force the other to pay. All the more so here it is Adif to keep what he has!

Answer #1: Since the Tana taught in the Reisha that Bari is Adif and the borrower is liable, he taught also the Seifa, that when it is opposite, the borrower is exempt.

Answer #2: The Bari of the lender [in the Reisha] is better than the Bari of the borrower [in the Seifa], and the Shema of the lender [in the Seifa] is better than the Shema of the borrower. (In the Reisha, because the borrower should know what happened, but normally the lender does not know. For this reason, the borrower's Bari is weaker, for he does not fear being contradicted);

Therefore, the Seifa needs to teach that even the Bari of the borrower, which is not so strong, is better than the Shema of the lender.

Question: Below, we establish our Mishnah like Sumchus, who does not follow Chazakah;

He holds that we divide money amidst Safek. Therefore, according to him, when there is Bari v'Shema, Bari Adif, even to make the other pay;

Rav Nachman holds like Rabanan, who hold that ha'Motzi me'Chavero Alav ha'Re'ayah!

Alternatively, Rav Nachman can hold like Sumchus. Sumchus agrees when there is no Drara of money that ha'Motzi me'Chavero Alav ha'Re'ayah!

Answer: Sumchus holds that we divide money amidst Safek. It is as if both of them are Muchzak in it. Since according to him, Bari helps against Shema, and [the Shema] must pay everything, we should similarly say according to Rabanan that Bari helps against Shema, at least to say that they divide.

Explanation: This is only when he says "I do not know whether you lent to me", but if he says "you lent to me, and I do not know whether I returned to you", a Mishnah (Bava Kama 118a) teaches that he is obligated;

Even so, it is a proper question against Rav Nachman. Even though he agrees that he handed over to him two cows, since he returns one, it is as if he says "I do not know whether or not you lent to me." (Rosh - normally, "I do not know whether I returned" is a poor claim, for he should know. Here, we cannot blame him for being unsure, so he is like one who unsure whether he borrowed.)

The same applies to one cow, when he does know whether it died while it was borrowed.

Question - Citation (Bava Kama 46a - Rav Yehudah citing Shmuel): (The Mishnah says that if a cow was pregnant, and a bull gored it, and we see the cow and its fetus dead, but we are unsure if it miscarried due to the goring or before the goring, the bull's owner pays half [of half-damage] for the fetus, due to Safek.) This is Sumchus' opinion, but Chachamim say that a great general rule in monetary laws is ha'Motzi me'Chavero Alav ha'Re'ayah;

Citation (cont.): Why is it called a great general rule? It is even if the victim is Bari, and the damager is Shema.

Suggestion: Here, Rav Yehudah is like Sumchus, and there he discusses according to Rabanan.

Rejection #1: If according to Sumchus Bari helps, it helps also according to Rabanan, like I explained (in DH Leima).

Rejection #2: Here, regarding "you owe to me 100", that there is no Drara d'Mamona, Sumchus does not argue!

Answer: Only here, Rav Yehudah holds that Bari Adif, because it is a good Bari and a poor Shema (because one should know whether or not he borrowed);

However, regarding a victim of damage it is a poor Bari. Since he knows that the damager was not there, and he will not contradict him, he claims Bari;

Also, the damager's Shema is good, for he is not expected to know. Therefore, Rav Yehudah agrees there, that Bari is not Adif.

Question: In Bava Basra (135a), regarding one who says "this is my brother" is not believed, we conclude that the [other] brothers say "we do not know";

Citation (135a) Inference: This shows that if one says "you owe to me 100", and the other says "I do not know", he is exempt.

How do we infer this? There, all agree that he is exempt, because his Bari is poor and their Shema is good, for he knows that the brothers do not recognize whether or not [the alleged brother] is their brother!

Answer: Also there, he fears lest today or in the future they will ask and find out that he lied.

Support: Also below (116b, if a house and an upper story belonged to different people, and it fell), it one recognizes some of his rocks, he takes them...

We conclude "what does the other one claim? He says "I do not know." We should say that this refutes the one who says that when one says "you owe to me 100" [and the other does not know], he is exempt!

Inference: According to the opinion that he is liable, this is fine!

Answer: Also there, the Bari is good, for it is common to recognize rocks, even if there is no Siman in them.

Support: It connotes like this there, for we establish it when there is an [another] obligation to swear, and since he cannot swear [also about the rocks], he must pay (let the other take what he claims to recognize);

If it is not common to recognize [his rocks], he does not pay, like heirs. We do not say about [heirs] "since he cannot swear, he pays", because it was not upon them to know;

Therefore, also when a victim of damage is Bari and the damager is Shema, we do not say "since he cannot swear, he must pay", since it was not upon him to know. (Rather, he is exempt);

[He must swear,] for he admits to part of the claim, for he agrees about the cow (that his bull gored it, but he is unsure about the fetus).

Question: In Kesuvos (12b), Shmuel rules like R. Gamliel, who says that [a Kalah who was found not to be a virgin] is believed to say "after Eirusin, I was raped";

Abaye said that Rav Yehudah's teaching, that when one says "you owe to me 100", and the other says "I do not know", he is obligated, is like Shmuel, who rules like R. Gamliel;

Rav Yehudah and Shmuel agree that when the Bari is poor and the Shema is good, Bari is not Adif, regarding a victim of damage;

There [in the case that R. Gamliel discusses], her Bari is weak, and his Shema is good, for he does not know when she was raped!

Answer: Abaye, who said that Rav Yehudah's teaching is like Shmuel, holds that "the great general rule of monetary laws" comes [to teach] like it says in Bava Kama (46a) "alternatively, it teaches about one who sold a bull, and it was found to be a gorer." (It is not a Mekach Ta'os, even if most buy bulls for plowing. Rather, ha'Motzi me'Chavero Alav ha'Re'ayah.) It does not teach about when the victim is Bari and the damager is Shema.

Question: Even though in Kesuvos we reject that R. Gamliel [must hold like Rav Yehudah. Perhaps he holds like Rav Nachman, but she is believed due to a Migo, or Chezkas ha'Guf], still Rav Yehudah's opinion is like Rav and Shmuel, who say in Shevuos (47a) that we do not say "since he cannot swear, he must pay";

If so, they hold that that when one says "you owe to me 100", and the other says "I do not know", he is obligated!

Source: If not, our Mishnah here would be difficult for them, and they could not answer that he is obligated to swear to him [for another reason, and since he cannot swear also about the 100, he must pay], like I explained!

Answer: They can properly hold [that when one says "you owe to me 100"...] he is exempt. Our Mishnah, which we establish when he is obligated to swear to him [for another reason], is like the Beraisa that R. Ami taught there, which expounds "[Shevu'as Hash-m will be] between both of them", and not between the heirs. (If the father could not swear because he did not know, he would be liable. In such a case, his heirs are exempt);

[Rav and Shmuel] expound "between both of them", that the Shevu'ah takes effect on both of them (both are punished for it), like R. Shimon ben Tarfon taught there. (They cannot expound to exempt the heirs, for they hold that even the father would be exempt!)

Question: According to Rav and Shmuel, who exempt one who knows about 50, and does not know about the other 50 [claimed], why is Modeh b'Miktzas obligated? He should be believed about what he denies, Migo (since) if he wanted, he could have said "I do not know"!

Answer: [This is not a Migo,] for one does not willingly claim "I do not know", like I explained in our Mishnah.

Explanation: In Bava Kama (118a) and Kesuvos (12b), Rashi explained that he is exempt, i.e. before Rabanan enacted Shevu'as Heses (for one who totally denies);

However, after they enacted Shevu'as Heses, he is obligated to swear that he does not know;

If not, every defendant would say "I do not know", and he would be totally exempt!

Explanation: Even so (that he must swear for another reason), in the middle clause, when the renter claims Bari and the owner is Shema, the renter is exempt from the Shevu'ah "it is not in my Reshus", for the owner cannot force him to swear it amidst Safek, even though he partially admits.

Question: Here it connotes that Rav Nachman holds that one who is obligated to swear and he cannot swear, he must pay;

Citation (Shevuos 47a - R. Meir): When both parties were suspected to swear falsely, the Shevu'ah returns to its place. R. Yosi says, they divide.

Note: In the Mishnah (45a), they say oppositely. On 47a, Amora'im say that R. Yosi holds that they divide.

Rav Nachman argues with R. Aba, who holds there like the opinion that the Shevu'ah returns to its place. R. Aba explains that this means that it returns to the one who was obligated to swear, and since he cannot swear, he must pay.

It says there that Rav Nachman ruled in a case that they divide, like R. Yosi!

Answer: [Rav Nachman] establishes our Mishnah here like R. Meir, and explains that [the Shevu'ah returns] "to its place" means to the one who was obligated to swear, like R. Aba, but [Rav Nachman] holds like R. Yosi.

Question #1: In Bava Basra (34a) it connotes that the Halachah follows R. Aba. (He taught that if one witness saw Reuven grab an ingot from Shimon, and Reuven says "I grabbed my own", since he is obligated to swear to contradict the witness, and he cannot [for he agrees to the witness' words], he must pay.) Later Amora'im bring from him a proof about how we rule, and we hold like Rav Nachman in monetary laws!

Question #2: In Shevuos (47a), regarding "orphans collect from orphans only with a Shevu'ah", Rav and Shmuel say that it connotes that this is only when the lender died in the lifetime of the borrower;

However, if the borrower died in the lifetime of the lender, the lender was already obligated to swear to the borrower's children [in order to collect], and one does not bequeath a Shevu'ah to his children;

[Rav and Shmuel] hold that we do not say since he cannot swear, neither the claimant or the defendant, [the defendant] must pay. Rather, he is exempt;

They argue with R. Elazar, who says that the heirs swear the oath of heirs (our father did not tell us that this document was paid) and collect;

R. Elazar holds like R. Aba, that since no one can swear, not the claimant and not the defendant, the defendant pays.

It says there (48b) since it was not taught that the Halachah follows this opinion, and it was not taught that the Halachah follows the other opinion, if one ruled like Rav and Shmuel, it stands. If one ruled like R. Elazar, it stands.

Inference: The opinion of Rav and Shmuel is as primary as that of R. Aba (since if one ruled like them, it stands.) There, it does not mention Rav Nachman. The Safek is only about [whether we follow] Rav and Shmuel, or R. Elazar!

Answer (R. Tam): In the case of the ingot, and "[I know about 50.] I do not know about [the other] 50, the Halachah follows R. Aba, that since he cannot swear, he must pay. There, even Rav Nachman agrees;

When both are suspected, the Halachah follows Rav Nachman, and also R. Aba agrees there that they divide;

The reason is because both were obligated to swear, and they cannot swear. Therefore, they both lose. Each loses half, due to R. Aba's reason;

Since he cannot swear, the defendant pays, and the claimant does not [totally] collect. Therefore, they divide.

Question: Raboseinu in Eretz Yisrael say there that [R. Meir means that] the Shevu'ah returns to the one who was obligated to swear, and they bring [a source] from the ingot of R. Aba!

Answer: This is not because R. Aba holds like R. Meir. Rather, is proven from R. Aba's words that he holds regarding the ingot that since he cannot swear, he must pay...

We can say that he also explains R. Meir's words to mean that the Shevu'ah returns to the one who was obligated to swear.

Limitation: This is only for one who is suspected about a Torah Shevu'ah. Regarding a Shevu'ah mid'Rabanan, e.g. one who is Pogem his document (he admits that he already collected part. He must swear in order to collect the rest) or a woman who is Pogem her Kesuvah, and she died, and [the document or Kesuvah] fell to the heirs...

We do not say that since they cannot swear, they lose, for Rav Papa said that one who is Pogem his document and died, his heirs swear and collect.

The reason is that for a Shevu'ah mid'Rabanan, we do not say "since he cannot swear, he pays", like it connotes above (5a) regarding the case of a shepherd.

The only exception is orphans [collecting] from orphans. Even though the Shevu'ah is mid'Rabanan, since they cannot swear, they lose, and do not collect.