Bava Metzia 82a — the Talmud in English

And we object:

But both this and that,

the Mishna and the beraita, in both of them,

it teaches: “He lent him [money] against the collateral,”

and it implies that in both of them the case is that he took the collateral at the time of the loan

The Tosafot object: For in Gittin 37 it is stated: “One who lends money to his fellow against collateral, the Sabbatical year does not cancel it, because he acquires it by virtue of Rabbi Yitzchak”—[a creditor acquires collateral], and the debt is considered collected. But Rabbi Yitzchak speaks of collateral that was not taken at the time of the loan, whereas in our sugya it is explained that this wording means that he took it at the time of the loan. And they answered that according to Rabbi Yitzchak, who says that a creditor acquires collateral if he took it not at the time of the loan, even if he took it at the time of the loan, his debt is not canceled in the Sabbatical year, “for his lien is strong enough for it to be considered, and not your brother’s in your hand,” since the collateral is already considered his with regard to this matter. However, the Ramban wrote that Rabbi Yitzchak stated his law—that a creditor acquires collateral—even when he took it at the time of the loan, and what is explained below, that Rabbi Yitzchak’s words apply specifically when he did not take it at the time of the loan, is only a rejection [of the proposed explanation]. [And this is likewise explained in the Lehem Mishne, Laws of Marriage, chapter 5, halakha 23.] And as for what the Tosafot wrote, that when he took it at the time of the loan his lien is strong even though he does not acquire it by virtue of Rabbi Yitzchak, the early authorities rejected this; see the Tosafot of Rabbi Yehuda the Elder [Kiddushin 8b], who wrote about their words: “It is nonsense.” And below we shall explain their words. And we answer:

Rather, it is not difficult:

Indeed, both the Mishna and the beraita are according to the words of Rabbi Eliezer.

It must be understood why the Gemara went to the trouble of establishing our Mishna according to Rabbi Eliezer, since in our Mishna the first tanna and Rabbi Yehuda disagree. If so, perhaps the first tanna is according to Rabbi Akiva, and Rabbi Yehuda according to Rabbi Eliezer? The Penei Yehoshua answers that from Rabbi Akiva’s wording it appears that the reason for the exemption is not the law of a paid bailee, for it implies that specifically his money was lost, even if the collateral was worth more than the amount of the debt. If his law were that of a paid bailee, he should have to pay him the value of the collateral exceeding the debt; therefore it is preferable to establish our Mishna according to Rabbi Eliezer. In truth, according to the conclusion that our Mishna follows Samuel, this is difficult, since Samuel does not obligate him by the law of a paid bailee. Here,

in the beraita, where Rabbi Eliezer said that he is a gratuitous bailee, the case is one in which

he lent him money,

and the lender did not benefit from his lending, since he could have left the money in his possession.

Here,

in our Mishna, he is a paid bailee; the case is one in which

he lent him produce,

and the lender benefited from his lending, for had he left it in his possession, it would have rotted and spoiled. Therefore, he is a paid bailee with regard to the collateral that he took for the loan of the produce.

And the Gemara raises an objection:

But since the latter clause teaches

of our Mishna,

“Rabbi Yehuda says: If he lent him money, he is a gratuitous bailee; if he lent him produce, he is a paid bailee,” it follows

that you learn from this

that according to the first tanna, it makes no difference to him

whether he lent him produce or whether he lent him money, and in both cases he holds that he is a paid bailee with regard to the collateral?

And we explain: Our Mishna

in its entirety,

is according to the words of

Rabbi Yehuda, and it is deficient

in its wording,

and this is what it teaches

in our Mishna:

“If he lent him [money] against collateral, he is a paid bailee.”

“When are these words applicable? When he lent him produce. But if he lent him money,”

he is

a gratuitous bailee.

Because

Rabbi Yehuda says: If he lent him money, he is a gratuitous bailee; if he lent him produce, he is a paid bailee.

Accordingly, all of our Mishna is according to Rabbi Yehuda, who distinguishes between lending him money, from which the lender does not benefit, and lending him produce, which he lends for his own benefit, so that the produce will not rot in his house.

And Rabbi Eliezer as well will hold accordingly, as was explained.

And we object:

If so,

that our Mishna—“If he lent him [money] against collateral, he is a paid bailee”—applies specifically when he lent him produce, then

our Mishna stands as not according to Rabbi Akiva

of the beraita, who holds, “If the collateral was lost, his money was lost,” because he took it for collection, and he is not like a gratuitous bailee, who is exempt in a case of loss.

And this is impossible! For an unattributed Mishna is Rabbi Meir, and Rabbi Meir would teach them according to the view of Rabbi Akiva, who was Rabbi Meir’s teacher!

Rather, it is evident

that our Mishna, which says, “If he lent him [money] against collateral, he is a paid bailee,” is

not according to Rabbi Eliezer.

And we inquire about it:

Shall we say

that Rabbi Eliezer and Rabbi Akiva, who disagree concerning the law of one who lends money to his fellow against collateral and it is lost, are discussing a case

in which the collateral was not worth the amount of the zuz

that he lent him, but the collateral was worth less than the amount of the loan

, and they disagree about Samuel

—[Rabbi Eliezer and Rabbi Akiva].

For Samuel said: One who lends

the borrower

one thousand

thousand

zuz to his fellow, and he placed a sickle handle as collateral for them,

that is, he gave him as collateral an object of little value, such as “a sickle handle,” then if

the sickle handle was lost, his one thousand zuz were lost!

The Lehem Mishne [Laws of Renting, chapter 10] understands from the position of the Maggid Mishne that according to Samuel the lender is liable even if it was lost through unavoidable circumstances. He raises the difficulty: How can it be explained that they disagree about Samuel, since our Mishna indicates that he is only a paid bailee and is exempt in cases of unavoidable circumstances? And he answers that according to this possibility the Gemara held that our Mishna follows Rabbi Eliezer, and Rabbi Eliezer agrees that when it is worth the amount of the zuz, he is a paid bailee. The later authorities explained that in the initial assumption the Gemara held that Samuel obligates him as a paid bailee, and only in the conclusion of the Gemara does he obligate him even in cases of unavoidable circumstances. The Even HaAzel there explains that specifically when it is not worth the amount of the zuz he is liable in cases of unavoidable circumstances, since this is akin to a condition stipulated by the borrower in order to be assured of the safekeeping of the collateral. But when it is worth the amount of the zuz, since against the debt he certainly pays him, for he gave it as an item for collection, he suffers no loss and does not stipulate with him that he be liable in cases of unavoidable circumstances.

That is, he is not liable to pay him the money that he lent him, because Samuel holds that any collateral given for collection is as though the lender agrees to accept this object in exchange for his money.

Therefore, if the lender does not return the collateral to the borrower, the matter is considered as though he repaid him his debt with the collateral.

And the Gemara held that this is what they disagree about. Rabbi Akiva held like Samuel, whereas Rabbi Eliezer disagreed and held that this collateral is only for the sake of remembering the matter.

The Tosafot discuss whether Samuel stated his law specifically when he explicitly obligated himself that if the collateral were lost the debt would be lost, or even ordinarily [see there, where they cite two versions in the sugya of Shevuot 43b]. They inclined to say that the case is where he specified it, “for it is unreasonable that he should lose all his money when he did not specify it.” They explained that according to the possibility that they disagree about Samuel, Rabbi Eliezer’s view is that even if he specified it, it is of no avail, since it is merely an asmachta, and they proved that he did not even lose the amount corresponding to the debt; while according to Rabbi Akiva, it is not considered an asmachta unless his intention is to persuade his fellow to do a particular thing. But here it is merely a waiver. And the Ritva in Shevuot there explains that it is not an asmachta unless he undertakes a large monetary obligation. But here he is able to guard the collateral and not undertake any obligation at all, and it is effective. They further asked: If so, the Gemara could have established the case where it was worth the amount of the zuz and where he did not specify it, and everyone would hold like Samuel? And they answered that if, when he specified it, he loses the entire debt, then when he did not specify it, he loses the amount corresponding to the collateral, for what corresponds to the collateral is considered as though he specified it, and Rabbi Eliezer would not exempt him [see the Maharam. And we object: No!

If

the case is

where it was not worth

the collateral

the amount of the zuz

that he lent him,

everyone

—both Rabbi Akiva and Rabbi Eliezer—

does not hold like Samuel,

since the collateral is not equal in value to the amount of the loan. Certainly he did not intend to take it for collection, but only for the sake of remembering the matter; and if the collateral was lost, the lender’s money was not lost.

But here,

the case is

where it was worth

the collateral

the amount of the zuz.

And they disagree

—Rabbi Akiva and Rabbi Eliezer—

about Rabbi Yitzchak.

For Rabbi Yitzchak said: From where is it derived that a creditor “acquires” collateral?

As it is stated: “You shall surely return the pledge to him when the sun sets, and he shall lie down in his garment and bless you,

Return the pledge to him when the sun sets, so that he may lie down in his garment and bless you,

and it shall be considered righteousness for you

before the Lord your God.”

The Tosafot object in Kiddushin [8b]: Even if he does not acquire the collateral, is it not righteousness that he returns it to him at the time when he needs it? And they answered that the proof is from “and he shall bless you”: If he did not acquire it, when the poor man blesses him, this would be verbal interest. They further answered that “righteousness” means, “Give him from what is yours as a righteous act”; and if it is not his, it is not righteousness. And if he does not acquire

the lender

the collateral, from where does he derive “righteousness”!?

After all, he returns it to him according to the law, since he is returning what belongs to him!?

Rather, from here it is derived that a creditor acquires collateral.

That is, certainly Rabbi Yitzchak does not mean that the collateral is acquired entirely by the lender, but that it is acquired with regard to his being liable in cases of unavoidable circumstances, and the Gemara held that Rabbi Akiva’s view—“If the collateral was lost, his money was lost”—follows Rabbi Yitzchak, whereas Rabbi Eliezer did not hold like Rabbi Yitzchak. And we object:

And can you understand it so?

Do you really think to say that they disagree about the words of Rabbi Yitzchak? But

say that Rabbi Yitzchak said

that a creditor acquires collateral specifically

when he took it not at the time of his loan,

for the verse, “and it shall be considered righteousness for you,” speaks of this case [as explained below, 113

Rashi’s view is that according to Rabbi Yitzchak the lender acquires the collateral even with regard to liability for unavoidable circumstances. But the Tosafot, in the passage beginning “Say,” wrote that he is liable only as a paid bailee. They inferred this from the fact that the Gemara compares this law to our Mishna, and our Mishna explains that he is liable only as a paid bailee. The early authorities raise a difficulty concerning Rashi’s view: What is the comparison to our Mishna? The Ritva answers that indeed he could have raised this objection, but even without it his objection is sound. And the Shakh [Hoshen Mishpat, section 72] explains that Rashi held that if he took it not at the time of the loan, he is liable in cases of unavoidable circumstances; when he took it at the time of the loan, he is liable as a paid bailee, and our Mishna is speaking when he took it at the time of the loan. The Gemara rejected this, saying that there is no acquisition by halves: If he does not acquire it with regard to liability for unavoidable circumstances, he does not acquire it at all. The Ramban further asks, according to Rashi, why should he be liable in cases of unavoidable circumstances? A borrower is liable in cases of unavoidable circumstances only because all the benefit is his. But here the borrower benefits, since he borrowed money from him. Moreover, is the lender not permitted to use the collateral? And furthermore, a craftsman acquires the improvement of an object [Kiddushin 48b], and nevertheless is liable for it only as a paid bailee, as explained in our Mishna. The Shakh wrote there that perhaps by law the lender is permitted to use the collateral as a borrower, and even if he is not permitted, this is only a decree lest the collateral be damaged through use. But according to the basic law, he is certainly permitted, and therefore his law is that of a borrower. The Shakh further proves Rashi’s words there: (a) From the very wording of the Gemara, “a creditor acquires collateral,” it implies that he acquires it entirely. (b) According to the words of the Tosafot in Kiddushin [see note 142], if he does not acquire it entirely, the matter is not considered righteousness.

And one cannot compare the cases and say that even when he took it at the time of his loan, the lender acquires the collateral. For logic dictates that if he took it not at the time of his loan, he certainly gave it for collection, when he summoned him to court and he did not have money to pay. But when he took it at the time of his loan, it is possible that he gave it to him then only for the sake of remembering the matter, and not for collection.

The Ran wrote in the name of Rabbi Isaac of Fez that a creditor always acquires collateral, but when he takes it at the time of the loan, he acquires it as a monetary acquisition, whereas when he does not take it at the time of the loan, he acquires it by virtue of Rabbi Yitzchak. And some have written that this applies only according to Rashi’s method. But according to the method of the Tosafot, his law is that of a paid bailee, which is an innovation, since ordinarily there is no acquisition by halves; and one has only the innovation itself, so he acquires it only when he did not take it at the time of the loan [Ketav Sofer]. Rather, if he took it not at the time of his loan, everyone holds Rabbi Yitzchak’s position,

and if the collateral was lost, his money was lost.

But here,

the case is

when he took it at the time of his loan,

and they disagree about “a finder of a lost object as a bailee”

—Rabbi Eliezer and Rabbi Akiva.

For it was stated: “A finder of a lost object,”

one who finds a lost object and brings it into his house, waiting until he finds its owner—what is his status?

Rabba said:

the finder is considered

a gratuitous bailee,

and is liable only if he was negligent in guarding it, since he receives no payment for his guarding.

Rav Yosef said: [He is] a paid bailee,

since he fulfills the mitzva of returning a lost object. And fulfillment of a mitzva is payment.

Moreover, if a poor person comes while he is occupied with the lost object, he is exempt from giving him charity, for one who is occupied with one mitzva is exempt from another mitzva. The later authorities raise the difficulty: The law that one who is occupied with a mitzva is exempt from another mitzva applies only as an exemption from positive commandments. But charity involves a prohibition—“You shall not harden your heart,” “and you shall not close your hand”—and this exemption was not stated concerning it. They answered in several ways. The Or Sameah [Yom Tov 3:8] explains, based on the words of the Ramban [Kiddushin 34], that when the prohibition comes to reinforce the positive commandment, its law is that of a positive commandment, since where the positive commandment was not stated, the prohibition was not stated either. The Kehillot Yaakov explains that the prohibition applies only if he refrains from charity by hardening his heart. But if he refrains because he is occupied with a mitzva, he does not transgress the prohibition. The later authorities further discussed that it is possible that one who is occupied with a mitzva is exempt even from prohibitions that he violates through passive inaction. Regarding the basic law of one who is occupied with a mitzva, we find several approaches among the early authorities. The approach of the Tosafot [Sukka 25] is that the exemption of one occupied with a mitzva applies only when it is impossible to fulfill both. The approach of the Ran there is that he is exempt even when it is possible to fulfill both, provided that he is occupied with the mitzva. But if he is not occupied with it—for example, he has tefillin on his head—he is not exempt from other mitzvot. And the Rashba [Bava Kamma 56b] cites the approach of the Raavad, which implies that even in this case he is exempt from the other mitzvot. The later authorities explained the reason for their dispute: It must be considered whether the law of one occupied with a mitzva is a law of exemption from the other mitzvot, or a law of supersession. [And see the Ran there, who says that even if he is occupied with shaking out the lost object, this is not considered a case in which it is impossible to fulfill both, since he can put it down for a moment and return afterward to shake it out; this clearly indicates that it is a law of supersession. But the Tosafot there disagree with him on this.] And in the Ritva on Sukka there it is explained that it is literally a law of exemption, for he wrote: If he is occupied with another mitzva, the other one becomes a voluntary matter. What is the reason that our sugya compares this to the law of a finder of a lost object? It is puzzling, since here he fulfills his mitzva only at the time when he lends, whereas a finder of a lost object fulfills his mitzva at every single moment. The Nimukei Yosef wrote that nevertheless, since he earned the coin of Rav Yosef at the time of the loan [and therefore is not obligated in charity], he thereby becomes a paid bailee forever. And the Ritva wrote that the lender too, each time he spreads the collateral out to shake it and occupies himself with guarding it, is exempt from charity like a finder of a lost object. [See note 144; and apparently the matter depends on this.

If so,

shall we say that Rav Yosef’s

dispute among the tannaim? Rabbi Eliezer holds like Rabba, and Rabbi Akiva holds like Rav Yosef, since the lender too fulfills a mitzva through his lending.

The Ritva asks: Every gratuitous bailee should be liable as a paid bailee, since he is obligated to occupy himself with the deposit, spreading it out and shaking it. And he answers [in Shevuot 44b] that this is not considered a mitzva except in the case of a finder of a lost object. But a gratuitous bailee became obligated in this from the outset. And in our sugya he wrote that a gratuitous bailee has made known that he does not wish to undertake liability as a paid bailee. But a lost object that did not come into his possession immediately from its owner: We say that his intention is to be a paid bailee, or that it is a condition of the court that he be so; that is, the law of the Torah is to obligate him as a paid bailee. And we explain:

No! In the case of a guardian of a lost object, everyone holds like Rav Yosef.