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Shabbat Parashat Beha'alotcha | 5769

Hemdat Hadaf Hayomi: Two People who Deposited Money Together

Baba Metziah 36-42


This week in the Daf Hayomi, the Gemara (37a) deals with a few cases where a person knows that he owes money, but he is in doubt as to whom he owes it to. One of the cases is where two people gave money to someone to watch for them; one gave a hundred and the other two hundred. When they came to retrieve their money, each claimed that he deposited the two hundred, and the guardian did not remember who deposited the hundred and who the two hundred. The conclusion of the Gemara, according to the ruling of the Rambam (She'ela Vepikadon 5, 4), and the Shulchan Aruch (Choshen Mishpat 300, 1), is that, if they deposited in two separate bundles, then he has to pay two hundred to each of them, since he was negligent, as he should have written the names on the bundles. However, since one of them is lying, each one of them needs to swear that he deposited two hundred. However, if they gave the money in one bundle, the guardian gives a hundred to each and the remaining hundred is left aside until it is clear who the owner is. The reason is that, since they did not separate the money, the guardian is not responsible to know which amount belongs to which person.

The Rishonim question the ruling in the case that exempts the guardian. This case appears to be a classic case of a person who admits to part of the claim, and is therefore required to swear on the rest of the claim ("Modeh Bemiktzat"). Each depositor claims that the guardian owes him two hundred, and the guardian admits owing one hundred. However, since he cannot swear to each person that he does not owe him the second hundred, since he is in doubt, he should be forced to pay, according to the rule that one who is required to swear and cannot do so must pay (Baba Metziah 98a). Thus, even though they deposited the money in one bundle, since the guardian admits to part of the claim, he should be required to pay the full amount to each of them!

The Ramban (Baba Metzia 37a) answers that, since it is clear that no more than three hundred was deposited, and the guardian is willing to give three hundred, there is no claim against the guardian, and the dispute is between the two depositors. Thus, the guardian is not considered as one who admits to part of the claim. The Rashba (ibid) does not accept the Ramban's answer. Rather, he claims that the rule that a person who cannot swear, since he is in doubt, must pay, is only valid if we expect him to know and be able to swear on the rest of the claim. However, if we don’t expect him to know, we do not require him to pay for not knowing and not being able to swear. Thus, in the case where two people deposited together in one bundle, since we do not expect the guardian to know who deposited two hundred and who one hundred, he is not required to pay even though he admitted to part of the claim and is not able to swear.

This claim of the Rashba is a matter of dispute. According to the Rambam, even if the defendant is not expected to know, if he cannot swear, he must pay. Therefore, the Rambam rules (ibid 5, 6) that if a person gave a wallet with money to someone to watch, and the guardian was negligent and lost the wallet, and he does not know how much money was in it, he must pay the full amount that the owner of the wallet claims was in it. The reasoning is that, since he admits to part of the claim, as he admits that there was money in the wallet, and he cannot swear as to how much there was, since he does not know, he must pay the full claim of the plaintiff. The Ra'avad (ibid) disagrees on the basis of the reasoning of the Rashba; since we do not expect the guardian to know how much money was in the wallet, we cannot make him pay for not being able to swear.

The Shach (Choshen Mishpat 72, 51) rules in accordance with the Rambam, that even in a situation were the defendant is not expected to know, if he is required to swear and he cannot, he must pay, unless it is a situation where it is clear that he does not know and could not have known.

Thus, anyone who receives something to guard, should make sure to know exactly what he is receiving, and if he receives an amount of money he should count it, so that he will know exactly how much he is liable for.

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This edition of Hemdat Yamim is dedicated to the memory of

R ' Meir ben Yechezkel Shraga  Brachfeld


Hemdat Yamim is endowed by
Les & Ethel Sutker of Chicago, Illinois in loving memory of
Max and Mary Sutker

and Louis and Lillian Klein, z”l.



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