[bm34b: We begin on the next to the last line of bm34a. The gemara continues discussion of the custodian from whom a deposit was stolen. If the custodian pays (rather than take an oath that the deposit was stolen through no fault of his own) and the thief is later apprehended, the thief pays a penalty to the custodian. The gemara will ask eleven hypothetical questions.]
Question 1: It is obvious that, if the custodian said "I will not pay" and then said "I will pay," [he acquires the rights to the penalty payment made by the thief,] because [his final statement was] "I will pay." But if he said "I will pay," and later sa id "I will not pay," do we say that he is rescinding his first offer, or perhaps he still stands by his initial offer, but is simply delaying payment?
Question 2: If the custodian says "I will pay" and dies before paying, and his sons say "We will not pay," what is the law? Do we say that they are rescinding the offer [made by their late father], or perhaps they stand by their father's word, and are sim ply delaying payment?
Question 3: If the sons paid [Rashi: even though the custodian himself died before he had an opportunity to make a commitment], what is the law? Can the owner say "When I was ready to convey rights to the double payment, it was to your father, who made me happy [i.e., who was a good friend], but not to you." Or perhaps it does not make a difference?
Question 4: [If the _owner_ died,] and the custodian paid the sons, what is the law? Can they say "When our father was going to convery rights to the double payment to you, it was because you made him happy, but you have not made _us_ happy [i.e., you are not _our_ good friend, and we are not willing to convey the rights to you]. Or perhaps it doesn't make a difference.
Question 5: If the sons paid to the sons, what is the law? [This hypothetical case combines the previous two cases; here, both the owner and the custodian have died, and the heirs are interacting.]
Question 6: If the custodian paid half [Rashi: Saying in advance that he is prepared to pay half and no more], what is the law [i.e, can he acquire half the penalty payment]?
Question 7: If one borrowed two cows [and both were stolen] and he paid for one of them [Rashi: ... and is not prepared to swear that the second cow {was not stolen but} died in the normal course of work {in which case he would not be liable}], what is th e law [i.e., can he acquire rights to the penalty for one animal]?
Question 8: If one borrowed from two partners, and paid one, what is the law [i.e., can one acquire the penalty rights of one of the partners]?
Question 9: If partners borrowed, and one of them paid, what is the law?
Question 10: [M'log assets are items owned by a woman prior to marriage. She retains ownership, but he has the rights to any profits or earnings. The term "m'log" means "plucking" /-- the wife owns the items, but the husband has rights to "pluck" the bypr oducts.]
If one borrowed a m'log item from a woman [and it was stolen] and the custodian paid the husband, what is the law [i.e., does paying the husband lead to a conveyance of rights]? [According to Rashi, the question is whether the husband's rights to the prof its are sufficient to make him enough of an "owner" to convey the rights. The commentary by Tosafot disagrees, arguing that both husband and wife are effectively joint owners, and it should not make a difference who is paid. Instead, the case is one in wh ich the woman lent the item out before marriage, and the gemara's question is whether her intent to convey rights to the penalty payment holds even when, after marriage, she is no longer the sole recipient.]
Question 11: A woman borrowed [and the item was stolen] and her husband paid, what is the law? [As in question 11, the issue is the husband's status as an owner.]
The questions stand [i.e., the gemara has no answer to these hypothetical cases].
[The Aramaic term "teiku" means "let it stand." But the term has also been aggadically interpreted as an acronym for "Tishbi Yitaretz Kushi'ot V'abayot" -- Elijah [the messianic figure, from the town of Toshav] will answer the questions and contradictions .]
[In practice, when the thief is apprehended, the double payment is split between the owner and the custodian.]
[We are now 18 lines from the top of the page. The gemara will begin an analysis of the oaths required of custodians. It refers specifically to the opening statement in our mishna (bm33b): "If one deposits an animal or utensils, and they were stolen or lost, and the custodian paid [the cost of the item] but does not want to swear [that he was not negligent, which would release him from any obligation] ... For the rabbis said: An unpaid custodian swears and is free of any obligation ..." ]
Rav Huna said: [Although he is prepared to pay for the allegedly stolen or lost item] the court administers an oath [to the custodian] that it is not in his possession. Why? We are concerned that he may have coveted the item.
[The gemara challenged Rav Huna's ruling on the basis of a mishna (Shevuot 43a) that deals with items held by a lender as collateral for a loan. The mishnah is quoted at great length.]
We learned in a mishna: [Case 1] If a person lent a fellow Jew money with collateral, and the collateral was lost, and he [the lender] tells him [the borrower] "I lent you a selah on collateral worth a shekel [half a selah], "and he [the borrower] says "N o, you lent me a selah on collateral worth a selah," he [the borrower] is exempt [from taking an oath that the lost collateral was worth the full sum borrowed.]
[The general principle is that one is required to take an oath only if one admits partial liability, e.g. if, in the face of a $100 claim, one admits to owing only $50. Here, the borrower denies the claim completely, so he can claim that the the debt was paid back in full and is not requited to swear swear to his evaluation of the collateral.]
[Case 2] If he [the lender says] I lent you a selah on collateral worth a shekel [so you still owe me a shekel], and [the borrower says] No, you lent me a selah on collateral that was worth three dinarim [i.e., 1.5 shekalim or 3/4 of a selah], he [the bor rower] is obligated to take the oath [since he admits owing _part_ of the debt, and, as noted above, partial admissions set the occasion for a required oath]. [The borrower would pay the dinar that he admits owing, and, upon taking the oath, would be exem pt from the rest of the debt.]
[Case 3] [If the borrower claims] you lent me a selah [with collateral that was worth] two sela'im [so you now owe me one selah], and [the lender] says: No, I lent you a selah [with collateral that was worth] a selah, he [the lender] is exempt [from takin g an oath that the lost collateral was not worth more than the sum borrowed.]
[Case 4] [If the borrower claims] you lent me a selah [with collateral that was worth] two sela'im [so you now owe me one selah], and [the lender] says: No, I lent you a selah [with collateral that was worth] five dinarim [one selah = four dinarim, so I o we you only one dinar], he [the lender] is obligated to take an oath [that the collateral was worth five dinarim, and must pay only the remaining dinar]. [As in the previous case, a person who admits partial liability is believed provided he takes the cou rt-administered oath.]
Who takes the oath? The one who held the collateral [i.e., the lender]. Perhaps the borrower will swear [in support if _his_ claim], and the lender will produce the collateral [Rashi: thus showing that the borrower had sworn falsely, and permanently disqu alifying him from any further testimony].
[This is the end of the mishna in Shevuot]
To which [of the four cases does the question of who takes the oath apply? If it is the latter part of the mishna [Case 4], shouldn't the Tanna derive that the lender takes the oath, because he admits partial liability? [Why would the mishna have to say t hat the lender takes the oath because of the possibility that he would disqualify the borrower from further testimony?]
Instead, Shmuel said, [the question of who takes the oath] applies to the first part of the mishna.
[The gemara asks:] What is meant by the first part of the mishna? [In the first part of the mishna, _nobody_ takes an oath!?]
[The gemara answers:] It refers to the second part of the first part [i.e. Case 2]: If he [the lender says] I lent you a selah on collateral worth a shekel [so you still owe me a shekel], and [the borrower says] No, you lent me a selah on collateral that was worth three dinarim [i.e., 1.5 shekalim or 3/4 of a selah], the borrower must swear [that the collateral was worth three dinarim], for the oath is legitimately his [because he admits partial liability]. But the rabbis ruled that the lender should swea r [that the collateral was worth a shekel, and would then collect the shekel that he claims is owed to him by the borrower], because if the borrower were to swear, the lender might produce the collateral [and disqualify the lender permanently from all fur ther testimony]. [Rashi: The rabbis did not want the borrower to swear, lest he be found to have sworn falsely, and disqualified from ever giving testimony. But taking an oath is a biblical obligation, and the rabbis could not completely eliminate it. The refore, they transferred the oath to the lender.]
[We finally return to our immediate issue: the validity of Rav Hunah's ruling that a custodian who claims that the object in his custody was stolen or lost is required to swear in court that it is no longer in his possession.]
Now, if Rav Huna's ruling is valid, then after the custodian has sworn that it is not in his possession, how can he produce it?
[The custodian, who had possession of the object in his care when it was lost or stolen, is regarded as analogous to the lender, who had possession of the object left as collateral when it was lost. The implication is that if Rav Huna's rule were valid, t he borrower in Case 2 could have safely been asked to swear to the value of the collateral, as required by the Torah, because the Rabbis would have considered it improbable that the lender, who had already sworn that it is not in his possesion, would then go ahead and produce it.]
[We are now on the second line of 35a.]