סוֹף סוֹף כִּי אָמַר לֵיהּ נֶאֶנְסוּ לָאו שְׁבוּעָה בָּעֵי הָכָא נָמֵי מַאי נֶאֱמָן נֶאֱמָן בִּשְׁבוּעָה Ultimately, even when the bailee says to the depositor that the items were taken from him under circumstances beyond his control, is he not required to take an oath? How, then, can you assert that he is deemed credible to claim that he returned the items without taking an oath? Rav Ḥisda said to him: Here too, what did I mean when I said that he is deemed credible? It means that he is deemed credible when he takes an oath.
לֵימָא בִּפְלוּגְתָּא דְּהָנֵי תַּנָּאֵי דְּתַנְיָא שְׁטַר כִּיס הַיּוֹצֵא עַל הַיְּתוֹמִים דַּיָּינֵי גוֹלָה אָמְרִי נִשְׁבָּע וְגוֹבֶה כּוּלּוֹ וְדַיָּינֵי אֶרֶץ יִשְׂרָאֵל אָמְרִי נִשְׁבָּע וְגוֹבֶה מֶחֱצָה The Gemara suggests: Let us say that Rav Amram and Rav Ḥisda disagree with regard to the issue that is the subject of the dispute between these tanna’im, as a halakha is taught in a baraita with regard to a purse document, i.e., a document that records an arrangement whereby one gives another money as an investment in a joint venture on condition that the profits will be divided equally between the two parties. If the person who received the money died, and this document was presented by the lender against the orphans, the judges of the exile say that the lender takes an oath that the money had never been returned to him, and he collects the entire sum. And the judges of Eretz Yisrael say that he takes an oath and collects only half of the sum.
וּדְכוּלֵּי עָלְמָא אִית לְהוּ דִּנְהַרְדָּעֵי דְּאָמְרִי נְהַרְדָּעֵי הַאי עִיסְקָא פַּלְגָא מִלְוֶה וּפַלְגָא פִּקָּדוֹן And it is understood that everyone agrees with the opinion of the Sages of Neharde’a, as the Sages of Neharde’a say: With regard to this joint venture, whereby one person gives money to another on condition that it will be used for business purposes and that the profits will be divided equally between the two parties, half of the invested money is considered a loan, for which the borrower is exclusively liable, and half is considered a deposit, so that if it is lost under circumstances beyond his control, the borrower is exempt from the liability to return it.
מַאי לָאו בְּהָא קָא מִיפַּלְגִי דְּמָר סָבַר מָצֵי אֲמַר לֵיהּ שְׁטָרָךְ בִּידִי מַאי בָּעֵי וּמָר סָבַר לָא אָמְרִי According to this assumption, everyone agrees that the claimant can recover from the orphans by means of an oath the half of the money that is considered a loan, just as he would have been able to demand that money from their father. Concerning the half that is considered a deposit, what, is it not with regard to this point that they disagree, as one Sage, the judges of the exile, holds like Rav Amram that the depositor can say to the bailee: What is your document doing in my possession? Therefore, neither the father nor his children are deemed credible to claim that they had returned the half that is considered a deposit, and the investor can collect that half as well. And one Sage, the judges of Eretz Yisrael, holds like Rav Ḥisda, that one cannot assert this claim, and therefore the investor can collect only the half that is considered a loan. But as for the half that is considered a deposit, the father would have been deemed credible in his claim that he had already returned it.
לָא דְּכוּלֵּי עָלְמָא אִית לְהוּ דְּרַב חִסְדָּא וְהָכָא בְּהָא קָמִיפַּלְגִי דְּמָר סָבַר אִם אִיתָא דְּפַרְעֵיהּ מֵימָר הֲוָה אָמַר וּמָר סָבַר אֵימוֹר מַלְאַךְ הַמָּוֶת הוּא דְּאַנְסֵיהּ The Gemara rejects this opinion: No, everyone, i.e., both the judges of the exile and the judges of Eretz Yisrael, agrees with the opinion of Rav Ḥisda, that the father can claim that he returned the money. And here, they disagree about the following issue, as one Sage, the judges of the exile, holds that if it is so that he had in fact repaid the money, he would have told his children that he repaid it. Since he did not tell them, it may be assumed that he never repaid the money. And one Sage, the judges of Eretz Yisrael, holds that you can say that it was the Angel of Death that prevented him from doing so, meaning he died before he had the opportunity to give his children a detailed report concerning his financial affairs.
שְׁלַח רַב הוּנָא בַּר אָבִין הַמַּפְקִיד אֵצֶל חֲבֵירוֹ בִּשְׁטָר וְאָמַר לוֹ הֶחְזַרְתִּיו לָךְ נֶאֱמָן וּשְׁטַר כִּיס הַיּוֹצֵא עַל הַיְּתוֹמִין נִשְׁבָּע וְגוֹבֶה כּוּלּוֹ Apropos this discussion, it is related that Rav Huna bar Avin sent the following ruling: If one deposits an item with another and receives a document attesting to the deposit, and the bailee later says to him: I returned the item to you, the bailee is deemed credible even if the document is still in the hands of the depositor. And with regard to a purse document attesting to a joint venture that was presented by the lender to support his claim against the borrower’s orphans, the lender takes an oath that the money had never been returned to him and collects the entire sum from the orphans.
תַּרְתֵּי שָׁאנֵי הָתָם דְּאִם אִיתָא דְּפַרְעֵיהּ מֵימָר הֲוָה אָמַר The Gemara asks: Don’t these two halakhot contradict each other? If the father is deemed credible when he claims that he repaid a loan, the court should present this claim on behalf of his orphans. The Gemara answers: It is different there, as if it is so that the father had, in fact, repaid the money, he would have told his children that he repaid it. Since he did not tell them anything about it, it may be assumed that he never repaid the money.
רָבָא אָמַר הִלְכְתָא נִשְׁבָּע וְגוֹבֶה מֶחֱצָה אָמַר מָר זוּטְרָא הִלְכְתָא כְּדַיָּינֵי גוֹלָה אֲמַר לֵיהּ רָבִינָא לְמָר זוּטְרָא הָא אָמַר רָבָא נִשְׁבָּע וְגוֹבֶה מֶחֱצָה אֲמַר לֵיהּ אֲנַן דְּדַיָּינֵי גוֹלָה Rava said: With regard to the case of a purse document that was presented to support a claim against orphans, the halakha is that the claimant takes an oath that the money had never been returned to him and then collects half of the sum recorded in the document, in accordance with the judges of Eretz Yisrael. The Gemara relates that two generations later, Mar Zutra said: The halakha is in accordance with the opinion of the judges of the exile. Ravina said to Mar Zutra: Didn’t Rava say that the claimant takes an oath and collects half of the sum? Mar Zutra said to him: With regard to the opinion of the judges of the exile, we