תּלמוד אויף שמות 22:10

HALAKHAH: “All who must swear by Torah standards,” etc. One understands from what is said, an oath before the Eternal shall be between them⁵Ex. 22:10., would we not know that if he does not swear, he has to pay⁶Since the entire paragraph is about the obligations of the paid trustee in case the deposit was lost. Only the case in which he does not have to pay is described; from this it follows that in all other circumstances he has to pay.? Why does the verse say, its owner shall take it, and he does not have to pay? But from the moment the owner accepted his oath, he does not have to pay⁷Babli 45a, Bava qamma107a; Mekhilta dR. Ismael Neziqin16, dR. Simeon ben Ioḥai ad loc., (Tosephta 6:7.)
Probably this statement has to be interpreted following the parallels in the Babli and the Mekhilta dR. Simeon ben Ioḥai: The oath grants the trustee absolute immunity. Even if afterwards witnesses are found who prove that the trustee stole the deposit, he cannot be made to pay. This cannot be inferred from the first part of the verse quoted earlier.
Mekhilta dR. Ismael Neziqin treats the statement as paradigm for all oaths prescribed in the Torah and sees in it proof for the statement that “All who must swear by Torah standards do swear not to pay.”. Rebbi Ḥaggai asked before Rebbi Yose: Is this only following Rebbi Meїr or even following the rabbis? Did not Rebbi Assi⁸The Babylonian name of R. Yasa who is named correctly in the parallel, Halakhah 4:14 (Note 118). say in the name of Rebbi Joḥanan: Rebbi Meїr is the one who says that out of a negative one understands a positive? Its owner shall take it, and he does not have to pay, therefore if he does not swear, he has to pay⁹Why should this simple inference be particular to R. Meїr and require R. Joḥanan’s statement?. Rebbi Ḥiyya stated: The unpaid and the paid trustees may stipulate to be like a borrower¹⁰It really should read: The depositor may stipulate with a paid or unpaid trustee that they should be strictly responsible for the deposit like a borrower (Mishnah 8:1). Since this is a money matter, the biblical conditions are only valid if there are no explicit dispositions for deviations from these standards (Bava meṣi`a5:5 Note 81). The verse may be read: If the owner accepts the oath, the trustee does not pay; this leaves open the option that the owner stipulated that he would not accept the oath.. Rebbi Ḥanina said, everybody agrees that in the language of the Torah out of a negative one understands a positive; where do they disagree? In everyday speech¹¹There is no disagreement with R. Meїr in the interpretation of scriptural verses but there is much disagreement in the interpretation of vows and informal texts..

¹⁵Babli Bava qamma93a. It is written: If a man give to another, etc’, to keep¹⁶Ex. 22:6.. To keep, not to tear it up. To keep, not to throw it away. To keep, not to give it away as a gift. Rebbi Yose said, only if he said to give it to anyone he likes. But if he said, to X, since he is obligated to keep it is as if he kept it for him¹⁷The paragraph gives the rules of the unpaid keeper who in case of loss has to swear that he did not appropriate the article for himself and that it was not lost by his negligence. But if he received the article in order to dispose of it, or to distribute it to the poor, even if it was lost there cannot be any oath. R. Yose points out that this applies only if the charge was to distribute to the poor, not if it was to be delivered to a designated person. Rashi explains in Bava qamma that the depositor cannot sue because he renounced ownership and the poor cannot sue since the keeper was free to give to any poor person of his choice..

It is written, if a man give to his neighbor a donkey, or an ox, or a sheep²⁵Ex. 22:9. etc. An oath before the Eternal shall be between the two of them²⁶Ex. 22:10.. Stolen, if it was stolen stealing from him²⁷Ex. 22:11. The verse is intentionally misquoted; it is written וְאִם “and if”, not אִם “if”, as noted in the sequel.. Lost, and if, to include the lost one²⁸This is Rebbi Aqiba’s signature argument that all conjunctions which are not absolutely necessary imply an addition which can only be determined by tradition.. So far following Rebbi Aqiba. Following Rebbi Ismael? Rebbi Ismael stated: Since you say that he pays for theft which is close to duress, for loss which is not close to duress not so much more²⁹In the Babli, Bava meṣi`a94b, this is characterized not as a statement of R. Ismael but as a Galilean Amoraic statement in the spirit of R. Ismael. A different argument is in Mekhilta dR. Ismael Neziqin16, (ed. Horovitz-Rabin p. 305).?