The Gemara asks a Kasha on R'Huna from the Mishnah of Malveh Al HaMashkon (Seyfa D'Reisha) where the Shomer is Chayiv for the Aveidah of the Mashkon, yet there's no Shvua She Aino B'rshuso. One could ask: According to the Bach's (Siman 295) understanding of the Rif, that a Shomer must only swear Aino B'Rshuso when he says "Hareini", not when he pays for the Mashkon, why should there be a Shvua She Aino B'Rshuso in this case? The Shomer has paid the Loveh (Shelem) for the Mashkon by deducting its value from the balance of the existing loan!
I think you must say that in this case, while payment for the Mashkon by the Shomer has been registered (Shelem), it was not accepted by the Loveh in a Tzurah of Mechila. Rather, it was given earlier, in the form of a loan. That being the case, there's no Giluy here that the Loveh was Mochel the Shomer from swearing Aino b'rShuso like typical cases of Shelem. So even though it is technically a case of Shelem, it suffers from the Chisaron of "Hareini", and in that respect still requires the Shomer to swear Aino B'Rshuso. Consequently, the absence of a Shevua She Aino B'Rshuso in this case is indeed a Kasha on Rav Huna.
Daniel Steinberg, Columbus
The Bach writes that if he agrees to receive payment for the lost object, this proves that he does not suspect the Shomer of keeping it for himself, because otherwise he would not have agreed to receive a money payment, but rather would have demanded that he return to him the actual item which he claims is still in the Reshus of the Shomer. This is not the same as the Seifa d'Reisha. There, the Loveh is obligated to pay back the loan that he borrowed. He borrowed a Sela (4 Dinarin) and claims that he gave a Mashkon worth three Dinarim to the Malveh. The Malveh lost the Mashkon and claims that it was only worth two Dinarim (a Shekel). The Beis Din obligates the Malveh to make a Shevu'ah that it was only worth two. The Beis Din accept this Shevu'ah and obligate the Loveh to pay back. He must pay back; he has no choice in the matter. The fact that he paid back two Dinarim does not prove that he agrees that the Malveh is not holding the Mashkon in his house. This is not similar to the Bach's scenario, where the fact that he voluntarily received the money payment proves that he does not suspect that the Shomer is still retaining the item.
Purim Katan Same'ach,
Dovid Bloom
I believe what you have written here is what I was saying, just in different words. Maybe it was obvious already, but what I was trying to draw out from the case of the Seyfa D'Reysha was that just because the Mafkid has received payment for the Mashkon, it is not an Etzem Ptur from the Shvua She Aino B'Rshuso. It has to be accepted by him B'Tur Mechilah for us to say that he no longer suspects the Shomer of keeping it for himself, which was not the case in the Seyfa D'Reysha.
Warm regards,
-Daniel Steinberg
Yes, that is what the Bach wrote that he was Mochel the Shevua.
Good Shabbos
Dovid Bloom