(Mishnah): The following people are required to swear (to the people they work for or with), even when there is no (definite) claim against them - a partner, a sharecropper, an overseer, and a wife or member of the household who conducts business in the house;

If [the defendant] says "what do you claim from me?" "I want to you to swear to me" - he is obligated [to swear].

After the partners or sharecroppers took their shares (or the others cease from their positions), one cannot make them swear;

If the claimant has reason to make (the former partner or sharecropper...) swear about something else, he can be Megalgel (force him to include in his Shevu'ah) everything.

Shemitah cancels the obligation to swear (about a claim of money owed from before Shemitah).

(Gemara - R. Yosi): [Our Mishnah] discusses one who does business without a calculation (of what he takes and returns), but if it is with a calculation, no (he cannot make him swear).

Also a member of the household [who does business with a calculation, he must swear about small matters] that he engaged in without a calculation [and due to this, he must swear about everything through Gilgul].

R. Ze'ira holds like this that R. Yosi taught;

A person came for Din in front of R. Ze'ira. He was obligated to swear about two Dinarim. He said "am I not obligated to you [to swear about] two Dinarim? Here, I give them to you!

[The claimant said] "and swear about this and this." R. Ze'ira told [the defendant] "give to him everything that he claims, or swear to him about everything he is Megalgel on you." (We explained this like the TUMIM (CM 94:6).)

Question: What is the extent that one can be Megalgel on him?

Answer (R. Yochanan): He can even say "you are my slave!" (If you deny this, you must swear.)

Question: If he was a Kohen (i.e. known to have proper lineage, can the claimant say that he is an Eved)?!

Answer: [He cannot say that he is an Eved Kena'ani, but he can say that he is] an Eved Ivri.

Question: Does Eved Ivri apply nowadays? (It is only when Yovel applies! We explained this like RIDVAZ. R. Yochanan taught a Chidush that applies only when Yovel applies - PF.)

(R. Shmuel bar Rav Yitzchak): [Our Mishnah teaches that Shevi'is cancels a Shevu'ah, i.e. about a loan], but not [a Shevu'ah about] Shemirah. We do not say that Shemirah is like a loan. (We explained this like NO'AM YERUSHALMI.)

We learn from a Gezeirah Shavah "Ba'al-Ba'al." Just like Ba'al said below [about Shemitah, Kol Ba'al Masa Yado" cancels, also here [regarding Shevu'ah, "v'Nikrav Ba'al ha'Bayis El ha'Elohim"] cancels;

Things that are Masa Yado (loans), Shevi'is cancels them and their Shevu'os. What is not Masa Yado, Shevi'is does not cancel it or its Shevu'ah.

Whatever Shevi'is cancels, it cancels its Shevu'ah. Whatever Shevi'is does not cancel, it does not cancel its Shevu'ah.

(Mishnah): There are four watchmen: a Shomer Chinam, a borrower, a Shomer Sachar, and a renter;

A Shomer Chinam swears about any Ones (the deposit was broken, captured, died; lost or stolen), and he is exempt;

A borrower pays for any Ones to the deposit (except if it died while working, for which he is exempt);

A Shomer Sachar or a renter swears (and is exempt) if the deposit was broken, captured, or died; he must pay if it was lost or stolen.

(Gemara - R. Yochanan): There are four Shomerim, and they are liable only through a Kinyan.

(R. Yakov bar Acha citing R. Lazar): Also regarding Gezeilah (open robbery), he is liable only through a Kinyan.

Support (R. Yosi bei R. Bun - Beraisa): If one stole a field from his friend [and a river flooded it, R. Eliezer obligates and Chachamim exempt. The Bavli (Bava Kama 117b) explains that R. Eliezer holds that land can be stolen, and Chachamim disagree - PF.]

(R. Chananyah citing R. Bun): Also regarding Geneivah (covert theft), he is liable only through a Kinyan.

Support (R. Chananyah citing R. Pinchas - Mishnah): If [a thief] was pulling [an animal] and leaving [the owner's Reshus], if it died in the owner' Reshus, he is exempt. If he lifted it or took it out of the owner's Reshus and it died, he is liable.

If he lifted it in the owner's Reshus, it is as if it totally left the owner's Reshus.

If he was pulling it and leaving [and it died, he is liable] only if it totally left the owner's Reshus.

Opinion #1 (R. Avahu citing R. Yochanan): [He is liable only] if it stands in his feeding trough (the thief took it to his own Reshus).

Objection (and Opinion #2 - R. Bun bar Chiyah): If it stands in his feeding trough, even if he did not pull it [from the owner's Reshus, rather, from Reshus ha'Rabim, he is liable]! Rather, we discuss when [he pulled it from the owner's Reshus, and] it is standing in Reshus ha'Rabim. (Since he took it out of the owner's Reshus, he acquired it).

Source: R. Bun bar Chiyah holds like (learns from) Beis Shamai. Beis Shamai say that [one who said that he will be Shole'ach Yad in a deposit is considered a Gazlan, and he] suffers due to any change in value (always pays the higher price! Beis Hillel holds that he is not liable until he is Shole'ach Yad.)

Question: What is the case [in which R. Avahu and R. Bun argue]?

If it stands in Reshus ha'Rabim, and he had pulled it [to there from the owner's Reshus], and it died in that Meshichah, all (R. Avahu and R. Bun) agree that he is liable;

If [it died] before he pulled it [to Reshus ha'Rabim], all agree that he is exempt!

Answer: Rather, the case is, it stands in his trough. (He pulled it to there from Reshus ha'Rabim. R. Bun obligates, and R. Avahu exempts.)

Question: R. Bun bar Chiyah holds like Beis Shamai! (He should be liable even without taking it out of the owner's Reshus!)

Answer (R. Bun): There, he acquires with the owner's consent (he was a Shomer). Here, he acquires without the owner's consent.

It is written "Ki Yiten Ish El Re'ehu... Lishmor" - to guard, and not to tear. To guard, and not to cast away. To guard, and not to give for a gift.

(R. Yosi): This is if he said to give a gift to whomever he wants to (for no one can claim from him), but if he said to give to Ploni, since he must guard it for [Ploni] it is as if he is a Shomer for him.

(Beraisa): "V'Gunav mi'Beis ha'Ish", and not from the top of his roof. (R. MEIR SIMCHAH, OTZAR HA'YERUSHALMI - a Shomer Chinam is liable for this. It is negligence!)

(R. Lazar): This is if the roof is not protected, but a protected roof is like a house.

(Beraisa): "V'Gunav mi'Beis ha'Ish", and not from the borrower's house. (If it was stolen from a Shomer, and the Shomer decided to pay and not swear, and later the thief was convicted through witnesses and obligated to pay Kefel, the Shomer receives the Kefel. This does not apply to a borrower.)

Rebuttal: [If so,] we should say [similarly] "v'Gunav mi'Beis ha'Ish", and not from the house of the Shomer Sachar or renter!

[We do not say so, for] since he must guard it, it is as if he is the owner. (All the more so a borrower is like the owner, for he has a greater responsibility to guard it! We explained this like MEICHAL HA'MAYIM.)

It turns out that there are three Parshiyos [of Shomerim], the last discusses a borrower, the middle discusses a Shomer Sachar or renter, and the first discusses a Shomer Chinam;

A borrower, since he gets all benefit, he pays for everything;

A Shomer Sachar or renter, since he benefits somewhat and gives benefit somewhat, he swears [to be exempt] for some matters and pays for some;

A Shomer Chinam, who has no benefit, swears and leaves. What does he swear? "I was not negligent."

Question: If others know that he was not negligent, what is the law (must he swear)?

Answer: We learn from the following. (HAGAHOS R. DINAR - the answer to this is missing.)

Question: If the thief was found and he cannot pay, can [the owner] tell [the Shomer] "swear to me that you did not intend to steal it"?

Answer: "V'Im Lo Yimatzei ha'Ganav" [then the Shomer must swear], but if he was found [even if he cannot pay, the Shomer] is exempt.

It says [in the second Parshah about a Shomer Sachar] "Ki Yiten Ish El Re'ehu Chamor Oh Shor Oh Seh... Shevu'as Hash-m Tihyeh Bein Sheneihem." [What is the source that he is liable for] theft? It says "Im Ganov Yiganev me'Imo."

[What is the source that he is liable for] loss? "V'Im" includes an Aveidah.

Question: This is like R. Akiva [who expounds Vov. What is the source] according to R. Yishmael?

Answer (Beraisa - R. Yishmael): Theft is close to Ones, and you say that he pays. Loss is not close to Ones, all the more so [he pays]!

Question: Regarding a borrower, only breakage [and death] are written. What is the source for theft or loss?

Answer: We learn from a Kal v'Chomer. A Shomer Sachar and renter, who do not pay for breakage or death, pay for theft or loss. A borrower, who pays for breakage or death, all the more so he pays for theft or loss!

Remark: It was taught about this "this is a Kal v'Chomer that cannot be challenged."

Question: What is the source [that a borrower pays for] Shevuyah (something taken captive)?

Answer #1: It says here [a borrower is liable for] "v'Nishbar Oh Mes", and it says there [a Shomer Sachar is exempt for] "u'Mes Oh Nishbar." Just like there, Shevuyah is with them, also here.

Question: This is like R. Akiva [who expounds Vov. "V'Chi Yish'al" equates a borrower to a Shomer Sachar. What is the source] according to R. Yishmael?

Answer #2: R. Yishmael holds like R. Nasan. R. Nasan says, "Oh" includes a Shevuyah.

Question: According to R. Meir, who says that a Gezeirah Shavah is learned Minah u'Minah (everything is like the source, we cannot learn like R. Akiva, for we should say) just like there [a Shomer Sachar] swears [to be exempt] for Ones, also here (a borrower) swears about Ones!

Answer: Also [R. Meir must hold] like R. Nasan. R. Nasan says, "Oh Mes" includes a Shevuyah.

Question (R. Yudan): If one claimed theft b'Ones, i.e. he said that an armed robber came and took it, does he pay double for [theft of] Ones (just like a Shomer Chinam who claimed that it was stolen is considered a Ganav, and pays Kefel)?

Answer #1 (R. Yosi): If he did, our Mishnah should have taught [Kefel regarding] a Shomer Sachar or renter. Our Tana did not find that a Shomer Sachar or renter pays Kefel [through a claim of theft] b'Ones.

Answer #2: And it was taught about this "this is a Kal v'Chomer that cannot be challenged";

(R. Chaninah): If you will say so (that there is Kefel for theft b'Ones), it is a Kal v'Chomer that can be challenged! One can say, we find that sometimes a Shomer Sachar or renter pays Kefel, and a borrower never pays Kefel, and it taught that this is a Kal v'Chomer that cannot be challenged!