Exodus 22:8

And about whatever is injured covertly, whether ox, or ass, or sheep, or raiment, of whatever is (so) lost, he shall make oath when he saith that so it is; and when the thing stolen shall be afterward found in the hand of the thief, the cause of both shall be brought before the judges, the cause of the householder and the cause of the thief; and whom the judges shall condemn, the thief shall restore twofold to his neighbour.

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.’”
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], 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, 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 Gemara 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, even though the Rabbi [Rashi] has not written so in his commentaries to the Gemara. 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. 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 judges — 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.

על כל דבר פשע...אבדה, concerning any matter entrusted to him involved in an accusation that he had abused his fellow man’s trust, כי הוא זה, identifying it as the very thing he claims had been stolen from him either by a thief or by the trustee; those declared guilty by judges will have to pay double the value of the stolen goods to the person owning it.

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.

עד האלוהים יבא דבר שניהם, both claimant and defendant are to render an oath. It does not matter whether the subject matter under dispute is a loan and whether it has been repaid, or something entrusted for safekeeping; in either case the claim being admitted partially.

אשר ירשיעון אלוהים ישלם שנים, when the judges convict the guilty party this is equivalent to a conviction for theft, and the penalty is restitution of twice the amount under dispute. A false claim that something had been stolen is equivalent to the person making the claim being judged a thief.

על כל דבר פשע, “concerning any matter of trespass, such as, etc.;” concerning this unusual wording, the Midrash points out that the numerical value of the words: כל דבר, “any matter,” is the same as the numerical value of the letters in the name of Aaron, אהרן=256. The Torah continues with the words: על שור, “on account of an ox (calf),” a hint at the damage caused by Aaron who had produced a golden calf from the crucible into which he had thrown the golden jewelry given to him. The word: חמור, “donkey,” is understood by that Midrash as applying to the mixed multitude who had joined the Israelites’ bandwagon at the Exodus, and who had been the first to clamour for a replacement of Moses, who had not returned from the Mountain after 40 days and forty nights without food and drink. (Exodus chapter 32). The word שה in this verse is understood by that Midrash as applying to the Jewish people in Jeremiah 50,17 where he called them שה פזורה, “scattered sheep.” The words: על שלמה, “for a raiment,” are a metaphor for idolatry, a variant of the word צלם idolatrous image, the letter ש substituting for the letter צ, and the vowel patach for the vowel tzeyreh. Both the letter צ and the vowel patach are used interchangeably in the Bible on other occasions. The words: על כל אבדה, “every type of lost object,” are also a metaphor for idolatry. In Deuteronomy 12,2 the Torah commands us to destroy any kind of idolatry which we will find in the land of Canaan. The word used for “destroying” is the word used for “losing” something, i.e. אבד תאבדון. To continue with the interpretation of our verse: the words: אשר יאמר כי הוא זה, of which he says: “this is it,” are a reminder of what the people said of the golden calf when it emerged from the crucible into which Aaron had thrown the men’s gold in Exodus 32,4, when they proclaimed of the golden calf: אלה אלוהיך ישראל אשר העלוך מארץ מצרים, “these are your gods Israel which have taken you out of Egypt.” The words: עד האלוהים, normally translated as “to a judge,” refer to Moses whom G–d had described as being an elohim compared to Aaron (Exodus 7,1) who would be his interpreter in his dealings with Pharaoh. The words: יבא דבר שניהם, “shall the matter of their litigation be presented,” refer to G–d and Aaron respectively, whereas the words: אשר ירשיעון, “whom they condemn” refer to Moses, whereas the words:ישלם שנים, “he will repay twofold,” refer to the two sons of Aaron, Nadav and Avihu, who paid with their lives for having brought alien fire on the censers on which they presented incense. (Leviticus 16,1) Thus far Tanchuma on section eight of his commentary on Parshat Acharey Mot.