Bava Kamma, Chapter 9, Mishnah 7. Our Mishnah continues to discuss the laws applying to one who swears falsely that he does not owe money to his fellow. As we have already learned, one who wishes to repent is required not only to return the stolen property, but to add a chomesh to it - an addition of twenty-five percent - and only after returning the principal and the chomesh does he bring an asham gezeilos offering.
The Novelty of the Mishnah - A Chomesh on a Chomesh:
A person stole one hundred from his fellow, and when the victim confronted him, he swore falsely that he never stole it. Afterwards he confessed, and now he is obligated to return one hundred and twenty-five. He returned only the one hundred, and when the victim claimed the rest of the debt, the robber claimed that he gave him everything, and took a second false oath on this. If he retracts and seeks to rectify this, he will be obligated in a chomesh on those twenty-five - six and a quarter.
And so this can continue, theoretically, ad infinitum - until the amount he denied under oath is worth less than a perutah. And this is the language of the Mishnah:
"Nasan lo es hakeren venishba lo al hachomesh" - The robber retracted after the first oath and returned the principal that he stole, but swore falsely a second time regarding the chomesh. "Harei zeh meshalem chomesh al chomesh" - When he seeks to rectify his actions, he will pay not only the chomesh that he was originally obligated in, but even a chomesh on that chomesh. "Ad sheyisma'et hakeren pachos mishaveh perutah" - Until the amount he swore falsely about is worth less than a perutah.
We must pay close attention to the language of the Mishnah: the amount he swore about is called here the 'principal', even though the original principal is what he initially stole. However, every denial under oath is like a new theft, and therefore the second amount - the chomesh - itself becomes a 'principal' regarding the next obligation.
The Five Ways to Obligate an Asham Gezeilos:
This law is not limited to taking something that is not his. The verse dealing with the asham gezeilos (Vayikra 5:21) lists five ways in which a person becomes obligated in an asham gezeilos, and this is the intent of the Mishnah when it says "vechein": anyone who swears falsely about money that he owes his fellow, and seeks to rectify the wrongdoing, must return the debt with an addition of twenty-five percent.
"Vechein befikadon, shene'emar: vechichesh ba'amiso befikadon o bitesumes yad o vegazel o ashak es amiso o matza aveidah vechichesh bah":
"Befikadon" - One deposits an object in his fellow's hand for safekeeping, and when he comes to take it, the watchman claims that it was lost, but in truth he took it for himself.
"O bitesumes yad" - A loan: the borrower denies the debt or claims falsely that he already paid it.
"O vegazel" - One who steals from his fellow and denies it, and this is the case with which the Mishnah opened.
"O ashak es amiso" - Withholding (oshek) is when one holds onto his fellow's money and refuses to pay it, such as one who withholds a hired worker's wages and denies his debt.
"O matza aveidah vechichesh bah" - One who finds a lost object, such as a wallet, and when confronted swears falsely that it is not in his possession.
"Venishba al shaker" - In every one of these cases, if he swore falsely and afterwards comes to rectify it, "harei zeh meshalem keren vechomesh ve'asham": he returns the principal that he truly owes, adds a chomesh to it, and afterwards brings an asham gezeilos offering.
An Unpaid Watchman Who Denied a Deposit:
The Mishnah transitions to the case of an unpaid watchman - one who guards his friend's object without receiving payment, doing it strictly as a favor. The rule is that an unpaid watchman is exempt from liability for theft and loss: if the deposit disappeared, that is considered loss, and if another person took it, that is theft. In both cases, the watchman is not obligated to compensate the depositor, since he was merely doing him a favor. In contrast, a paid watchman - who is not discussed in our Mishnah - is liable for theft and loss, since the act of watching the object is the actual work for which he takes payment.
The depositor asks: "Heichan pikdoni" - where is the object that I deposited in your hands? "Amar lo: avad" - the watchman replied that the deposit was lost and he does not know what happened to it, and therefore he is exempt from paying.
"Mashbiacha ani" - the depositor said to him: I administer an oath to you that your words are true. "Ve'amar: amen" - the watchman answered amen, and amen means complete agreement with everything that was said.
Answering amen to an oath administered by a friend is considered a complete oath in every respect, with all its responsibilities and implications, even though the one swearing did not verbalize an oath himself or mention the Name of God. We find this in the case of a sotah, and similarly, one who hears Kiddush recited by someone else and answers amen is considered as though he recited Kiddush himself.
"Ve'edim me'idim oso she'achalo" - afterward, witnesses came and testified that they saw him eating the deposit, so he is found to have sworn falsely and was caught in his lie.
What is the halachah? "Meshalem keren" - only. The watchman, who was effectively a thief, is obligated to return the value of the principal deposit, and nothing more. There is no obligation for a fifth here, since he is not coming on his own initiative to repent and he does not admit guilt at all, but rather was caught by witnesses; and for the same reason, he also cannot bring a guilt offering, since he did not behave properly. There is no payment of double here either, even though he held onto something that was not his, because he did not take it through theft but it was handed to him with permission, and once he kept it and claimed it was lost, this is not a theft that obligates double payment, and he pays nothing besides the principal.
Admitting on his own:
But if the watchman admitted on his own that he ate the deposit, "Meshalem keren vechomesh ve'asham" - he returns the principal, adds a fifth to it, and brings the guilt offering. The foundation of the matter is: the payment of the fifth and the bringing of the offering are granted specifically to one who admits and seeks to repent. One who insists on his lie and does not retract is not given this opportunity to purify himself - he does not pay a fifth and does not bring a guilt offering.
If the witnesses came first and he was caught, and he returned the deposit, and ultimately he admitted on his own out of a desire to do the right thing - since he admitted and already returned the deposit, he is permitted to bring his guilt offering and attain atonement, as he is seeking atonement. As for the obligation of the fifth after the witnesses had already caught him - this is a dispute among the Rishonim, and this point remains a question mark.
With this the Mishnah concludes, but the following Mishnah is a direct continuation of the exact same case, and therefore it is appropriate to learn both of them in a single sequence.