Shevuot 43b — the Talmud in English

Gemara:

We learned at the end of the Mishna: Who takes an oath? The one in whose possession the deposit is.

And the Gemara asks:

About what

was this law stated?

If you say, about the end

when the borrower claims that the pledge was worth more than the loan, and the lender admits to part of his claim, why does the Mishna need to teach us the reason that the lender takes an oath—“lest this one take an oath and the other produce the deposit”?

And let it follow that the oath is upon the lender?

For he is the defendant in this case, and he is the one who admits to part of the claim concerning the pledge, and if so, he is liable to take an oath under the law of one who admits to part of a claim?

Shmuel said:

Indeed, this law was stated about

the beginning

of our Mishna. For the Sages took the oath that the borrower was liable to take and placed it upon the lender, in whose possession the deposit is. [And below the Gemara explains about which part of the beginning this law was stated.]

And likewise Rabbi Hiyya bar Rav said—

about the beginning, and likewise Rabbi Yohanan said—

about the beginning.

What is the beginning

in which this law was stated?

The end of the beginning.

In which it is written: The lender said—

“I lent you a sela against it, and it was worth a shekel.”

And the other says:

“Not so; rather, you lent me a sela against it, and it was worth three dinars,” he is liable

the lender—to take an oath!

Since

the oath

is according to the fundamental law

upon the borrower,

since in this case he is the one who admits to part of the claim [in that, according to his admission, he still owes the dinar that is the difference between the loan and the value of the pledge].

And they took it [they removed it]

the Sages took this oath from the borrower,

and cast it [they placed it]

upon

the lender,

so that there would not be a situation in which the lender could produce the deposit after the borrower swore how much the pledge was worth, and prove that his words were untrue, thereby disqualifying him from testimony.

And now, since Rav Ashi said

according to Rav Huna, who said that every bailee who admits that he did not guard properly and is prepared to pay is also required to swear that the object is not in his possession [we are concerned that he set his eyes upon the deposit and is prepared to pay its value provided that it remain with him].

And according to these words of his, this is difficult: What is the concern stated in our Mishna, lest the lender produce the pledge? For we should require the lender to swear that it is not in his possession, as is the law with every bailee, and consequently the concern that the lender might produce the deposit does not exist, since he swore that it is not in his possession.

And Rav Ashi answered:

We hold

that this is the law of our Mishna:

This one,

the lender, takes an oath by rabbinic enactment

that

the pledge

is not in his possession. And this one,

the borrower,

takes an oath

of one who admits to part of a claim by Torah law

how much it was

the pledge

worth.

And if so, since in practice both of them take oaths, why did the tanna of the Mishna say, “Who takes an oath? The one in whose possession the deposit is”?

Rather,

this is what he said:

In truth, both of them take oaths, [as follows from Rav Ashi’s ruling,] and the law of the Mishna is:

Who takes an oath first—

the one in whose possession the deposit is.

For if we say that the borrower takes an oath first, there is concern

lest this one take an oath,

the borrower, and then the lender will not take his oath that it is not in his possession; rather,

the other will produce the deposit

and prove that the borrower lied in his oath.

Shmuel said: This one who lends a thousand zuz to his fellow, and pledges for him

for his debt

a sickle-handle [the handle by which the sickle is grasped, whose value is small and bears no proportion whatsoever to a loan of a thousand zuz; nevertheless:] If

[the wooden handle used to hold a sickle, whose value is small and bears no comparison to a loan of one thousand zuzim; nevertheless,] if

he lost

the sickle-handle—

he lost the thousand zuz.

For by agreeing to accept a sickle-handle as a pledge for a debt of a thousand zuz, he agreed that as long as he does not return that sickle-handle to the borrower, the latter need not repay his debt.

But,

if he pledged for a thousand zuz

two sickle-handles, not

do we say that each handle is a pledge for half the debt. And if he lost one of them, then he lost five hundred zuz.

Rather, we say that the two handles constitute one pledge. And since he returns one handle to the borrower, it is found that he returned to him part of the entire pledge. He can pay the borrower the value of the second handle that was lost, and collect the entire debt.

And Rav Nahman said: Even if

he pledged

two sickle-handles,

the law is:

he lost one—

he lost five hundred; he lost the other—

he lost all of it,

the entire thousand zuz! For each and every handle is a pledge for half the debt.

But,

if he pledged

a sickle-handle and a silver ingot, [a piece of silver whose value is substantial,]

[a piece of silver of substantial value,]

not

do we say that the lender accepted the “silver ingot” as a pledge for half the loan.

Since the silver ingot is of great value, and in this respect it differs from the handle. For it is an object fit for repayment. And it should be assumed that he accepted the silver ingot as a pledge for repayment—that if he does not repay his debt, he will collect it from the silver ingot according only to the value of the silver ingot.

And it follows that the lender did not agree that if the silver ingot were lost, he would lose half his debt. Rather, only the amount that the silver ingot itself is worth.

The Nehardeans said: Even if it was a handle and a silver ingot, if the silver ingot was lost—

he lost half. If he lost

afterward also the

handle—

he lost all of it!

And the Gemara raises an objection: But

we learned: “I lent you a sela against it, and it was worth a shekel.” And the other says: “Not so; rather, you lent me a sela against it, and it was worth three dinars,” he is liable

the borrower—to take an oath of one who admits to part of a claim,

And why? For according to Shmuel’s words, that accepting the pledge from the borrower’s hand is like agreeing that as long as he does not return the pledge to the borrower, the borrower need not repay his debt,

let him say to him

the borrower to the lender:

“I accepted it”

this pledge [which according to your words was worth a shekel], and you agreed that as long as you do not return it, I need not pay my debt?

And the Gemara answers:

The Mishna

deals

with a case where he specified.

The lender specified that he does not accept responsibility for the pledge, but only for its value, according to its worth.

Shmuel—

deals with a case where he did not specify.

Rather, the lender accepts it without specification, and since so, we say: Since he agreed to accept a pledge worth less than its value, he is like one who agreed that the borrower is not obligated to pay unless he returns his pledge to him.

And the Gemara establishes Shmuel’s words:

Let us say

that his words are

like the following dispute between tannaim:

For it was taught:

One who lends money to his fellow against a pledge

and the pledge is not worth the money of the loan,

and the pledge was lost—

he takes an oath

the lender that he was not negligent in guarding it [for he is an unpaid bailee with regard to it, and he is liable only for negligence].

And he takes his money

that the borrower owes him—

the words of Rabbi Eliezer.

Rabbi Akiva says: He can,

the borrower,

say to him,

to the lender:

“Did you lend me anything except against the pledge?

And it is as though we agreed between us that if

the pledge was lost, your money was lost!” [

And it is explained that Shmuel’s words are according to Rabbi Akiva’s position, whereas Rabbi Eliezer disagrees with this.]

But, one who lends a thousand zuz by a document, and places a pledge in his possession

worth less than the amount of the loan—

according to everyone: if the pledge was lost—

his money was lost.

Since in this case he certainly took the pledge in order to collect from it, for he has a document concerning this debt. And an ordinary document contains a lien upon land, and consequently he has from where to collect. Therefore, if in addition to all this he also took a pledge, it must be that he took it in order to collect from it. And the Gemara discusses the words of the beraita: