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Assuming that the collateral was stolen, the machloket (Bava Metzia 81b-82b) whether a borrower who is watching collateral has a status of a paid watchmen (shomer sachar) or a free watchman is crucial. This is because the former is obligated to pay if the watched object is stolen and the latter is exempt. The final halacha on the matter is unclear. The Shulchan Aruch (Choshen Mishpat 72:2) says the lender is considered a shomer sachar and must pay the borrower. On the other hand, the Rama (ad loc.) says that out of doubt which opinion is correct, we cannot extract money from the lender (while the lender cannot force payment of the loan from the borrower). The Shach (CM 72:22) also leaves the matter as a doubt but says that as a result of the doubt, if the borrower were to seize (or otherwise have control over) funds from the lender, he could keep the amount that is arguably due to him.
Therefore, if we were to rule according to the strict classical halacha, Reuven would swear that the collateral was indeed stolen, and he would not have to pay Shimon. Beit din does not administer oaths in our times but invokes compromise to compensate for the lack of an oath. Therefore, in this case, the compromise should also take into consideration the fact that even if the object was indeed stolen, Reuven would still be obligated to pay according to many opinions. This would cause us to raise the amount that Reuven would pay as a compromise.
In this case, there is somewhat of a question about the need to swear, as in the first place, Shimon originally said that he trusted Reuven that the collateral was stolen, although he now says that he does not trust Reuven. It seems that Shimon has the right to retract his belief in Reuven until the case is decided unless a kinyan was made to finalize his waiving of the need for an oath. Although a litigant who accepts the testimony of an invalid witness cannot back out of it after the testimony has been heard (Rama, CM 22:1), that is because it is thereby considered as if the witness were valid, in which case the testimony is permanent and even the witness cannot retract it (see Tumim 22:4). However, regarding accepting a claim of the opposing litigant, since the litigant can change his own claim, certainly to his detriment, the other litigant’s accepting of his word is also not permanent.
Furthermore, it is not clear that Shimon believed Reuven that he watched the collateral sufficiently well. It is not even clear that according to Reuven’s own story, he was not negligent. Therefore, it is proper for the dayanim to make Reuven pay two thirds of the value by which the collateral exceeds the loan.
P'ninat Mishpat (829)
Various Rabbis
307 - Participation in the Expenses
308 - Lost Collateral
309 - Demand to Remove a Chazan from His Post
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P'ninat Mishpat P'ninat Mishpat: Smoking Rights in a Rental? – part III
based on ruling 85076 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'NINAT MISHPAT: A Mess of Loans, Repayments and Grievances – part II
based on ruling 83033 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Late and Flawed Apartment
based on ruling 82174 of the Eretz Hemdah-Gazit Rabbinical Courts
Rabbis in Midrash
Lessons
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Kuzari -Rabbi Ari Shvat Kuzari class 9 - "Seeing is Believing" (parag. 21-30)
These paragraphs elaborate on the theme that seeing and knowing is better than any attempt to prove logically, and begins explaining the difference between Israel and gentiles.
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Kuzari -Rabbi Ari Shvat Kuzari class 8- "Answering Questions on the Kuzari's Proof from Mass Revelation
How do we know that the "claim" of mass revelation to 2,000,000 witnesses at Mt. Sinai is really true? This important class answers all of the questions skeptics ask about this claim of the Kuzari.
Ein Aya Armies Still Necessary for Balance & the War Against Wars
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The Land of Israel LGBT'S IN ISRAEL
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Kuzari -Rabbi Ari Shvat Kuzari class 7 - Five Accumulative Proofs of G-d
As a preparation for the Kuzari's classic proof of G-d from the mass-revelation at Sinai, we start here with 5 other directions to strengthen our belief which also contribute to what the Kuzari will present as well.
Ein Aya Muscle & Meaning: The Dual Nature of Gevurah (Physical Strength)
Is physical strength and fitness a necessity or an ideal? Although it if often totally overlooked among topics of Judaism, Rav Kook writes that it clearly is also a necessity to deter the many enemies of Israel, but even in Y'mot HaMashiach, in the Messianic era, to a certain extent, it's ideal continues even after our enemies will have been finished off.
