Comentario sobre Exodo 22:8

על כל דבר פשע FOR ALL MANNER OF TRESSPASS in which he (the bailee) is proved a liar in respect of his oath (i. e. is convicted of perjury), because witnesses testify that he himself has stolen it and the judges condemn him on the evidence of the witnesses,

WHEREOF ONE SAITH: ‘THIS IS IT.’ Rashi comments: “according to the literal sense it means: that which the witness will say ‘this is it — this is that article about which you have taken an oath [that it was stolen from you] but see, it is in your possession!’ And our Rabbis have explained that the phrase this is it teaches us that an oath cannot be imposed [by the court on a defendant] unless he admits part of the claim, saying ‘I owe you so and so much, but the rest was stolen from me.’”²¹⁸But if he denied the claim altogether, he is free from having to take an oath of the Torah. The Rabbis, however, instituted a consuetude oath in such cases (Shebuoth 40 b).
But this principle of partial admission which the Rabbi [Rashi] has written here, is in accordance with the opinion of certain individual Rabbis [in the Talmud],²¹⁹Rabbi Chiya bar Aba in the name of Rabbi Yochanan, and Rami bar Chama (Baba Kamma 106-107 a). but is not the accepted decision of the law, for guardians [to incur liability to an oath] need not partially deny and partially admit the claim,²²⁰In other words, while the principle of partial admission applies to claims of debts, in the case of claims in guardianship, the accepted decision of the law is that the guardians need not partially admit the claim in order to be liable an oath of the Torah. The above interpretation of Rashi agrees therefore only with the opinion of certain individual Rabbis, but is not the accepted opinion. but even if they claim that the whole article was stolen, they still have to take the oath of the guardians, [unlike debts, which, if the debtor denies completely, do not require an oath of the Torah]. Moreover, it has been explained in the Gemara²²¹Baba Kamma 107a. with convincing proofs, that when he denies the very fact that he ever became a guardian, such as where he says “you have never given me the object to keep,” in that case if he denied it totally, he is free from taking an oath, and if he admitted it partially he is obliged to take an oath, this being the opinion of all Rabbis in the Talmud,²²²Ramban is here making an important distinction [in accordance with the teaching of the masters of the Tosafoth — see my Hebrew commentary, p. 430]: If the guardian sets up the kind of defense which can apply to cases of guardianship, such as where he says “an unavoidable accident happened to it” [such a defense has no place naturally where one is sued for a plain debt], then there is no distinction between total and partial admission — he is liable to an oath in either case. But where he puts up the kind of defense which can apply also to a debt, such as where he says, “You have never given me the object to keep” [which can apply to a debt as well: “You have never lent me”], then the law of partial admission applies to a guardian as well as to a debtor: if he denies it totally he is free of an oath, and if he admits it partially he is subject to an oath. — A re-reading of Ramban’s words [“Moreover, etc.”] will yield this thought clearly. even though the Rabbi [Rashi] has not written so in his commentaries to the Gemara.²²¹Baba Kamma 107a. If so, we may say that the phrase [this is it — from which we derive the principle of partial admission, as explained above], speaks according to the interpretation of the Sages of a case where the guardian’s defense is: “He never gave me anything to keep,” in which case if he denied it totally he is free of an oath, and if he partially admitted it and partially denied it, he is liable to take an oath.²²³Such as where the claimant said, “I gave you two vessels to keep,” and he replies, “You gave me one to keep, but the other you never gave to me.” Had the defendant claimed so on both vessels, he would be free of an oath of the Torah. However, if his defense had been that an unavoidable accident happened, even if he claimed so on both of them, he would have had to swear [see preceding Note]. Thus the verses are to be explained as follows: If the thief be not found, then the master of the house shall come near unto the judges²¹⁴Verse 7. — for every claim of trespass which he may claim against him, such as: “You were negligent in your guarding it,” or where the guardian says: “this is it, — this is what you have deposited with me, and you did not deposit any more with me” — then the one with whom the article was deposited that the judges will condemn, [upon testimony given before them that he embezzled it], shall pay double unto his neighbor. Thus, both [the debtor and the guardian] pay, but double restitution is only where the guardian claims falsely that it was stolen, and the rule concerning the plea of partial admission applies to all claims, even to loans, robbery and other matters. In all these laws the verses of Scripture are few and the rules many. But there is no need to explain them here, except in order to interpret the verses.

אשר יאמר כי הוא זה, also if the accused says “this is the truth,” implying that only part of the accusation is true. This is what is called in Talmudic parlance מודה במקצת, a partial admission.