Shevuot 43b (מג:) — the Talmud in English

Gemara:

We learned at the end of the Mishna: “Who takes the oath? The one who has the deposit in his possession.”

And the Gemara asks:

To which case

does this ruling refer?

If we say it refers to the latter clause,

when the borrower claims that the collateral was worth more than the loan, and the lender admits 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”?

But let it be inferred that the oath is incumbent upon the lender!

For he is the defendant in this case, and he is the one who admits part of the claim concerning the collateral; if so, he is obligated to take an oath under the law of one who admits part of a claim.

Shmuel said:

Indeed, this ruling refers to

the first clause

of our Mishna. The Sages took the oath that the borrower was obligated to take and imposed it upon the lender, who had the deposit in his possession. [The Gemara below explains to which part of the first clause this ruling refers.]

And Rabbi Hiyya bar Rav likewise said—

it refers to the first clause. And Rabbi Yohanan likewise said—

it refers to the first clause.

What is the first clause

to which this ruling refers?

The latter part of the first clause.

It states there: The lender said—

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

And the other said:

“No; rather, you lent me a sela against it, and it was worth three dinars,”—

the lender is obligated to take an oath!

Since

this oath

is required by the fundamental law—

it is incumbent upon the borrower

since in this case he is the one who admits 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 collateral].

And they took it [נטלוה] the Sages took this oath from the borrower,

the Sages took this oath from the borrower,

and cast it [הטילוה]

[placed it]

upon the lender,

so that there would not be a situation in which the lender could produce the deposit after the borrower had sworn how much the collateral was worth, thereby proving that the borrower’s statement was false and disqualifying him as a witness.

And now, since Rav Ashi said

according to Rav Huna, who said that any bailee who admits that he did not guard the item properly and is prepared to pay is also required to swear that the item is not in his possession [as there is concern that he has set his eyes on the deposit and is prepared to pay its value provided that it remains with him].

And according to these words, this is difficult: What is the concern stated in our Mishna, lest the lender produce the collateral? Let us require the lender to swear that it is not in his possession, as is the law with every bailee; consequently, there is no longer a concern that the lender might produce the deposit, since he has sworn that it is not in his possession.

Rav Ashi answered:

We hold

that the law of our Mishna is as follows:

This one,

the lender, takes an oath by rabbinic enactment

that

that the collateral

is not in his possession. And this one,

the borrower,

takes an oath

an oath for admitting part of a claim by Torah law

as to how much

the collateral

was worth.

And if so, since in practice both of them take oaths, why does the tanna of the Mishna say: “Who takes the oath? The one who has the deposit in his possession”?

Rather,

this is what he is saying:

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

Who takes the oath first—

the one who has the deposit in his possession.

For if we were to say that the borrower should take the oath first, there would be concern

lest this one

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

the other would produce the deposit

and prove that the borrower lied in his oath.

Shmuel said: If one lent one thousand dinars to another, and he pledged to him

as collateral for his debt

a sickle handle [בית יד לאחיזת המגל, ששויו מועט, ואינו עומד בשום יחס של הלואה לאלף זוז, ובכל זאת:] [the handle used to hold a sickle, which is of little value and bears no proportion to a loan of one thousand dinars; 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

the sickle handle is lost

the sickle handle—

the one thousand dinars are lost.

Because by agreeing to accept a sickle handle as collateral for a debt of one thousand dinars, he agreed that as long as he does not return that sickle handle to the borrower, the latter need not repay his debt.

However,

if he pledged as collateral for one thousand dinars

two sickle handles, it is not

said that each handle is collateral for half the debt, so that if one of them is lost, five hundred dinars are lost.

Rather, we say that the two handles constitute a single item of collateral. Since he returns one handle to the borrower, it follows that he has returned part of the entire collateral. He can pay the borrower the value of the second handle that was lost and collect the entire debt.

And Rav Naḥman said: Even if he pledged

as collateral

two sickle handles,

the law is:

if one is lost—

five hundred are lost; if the other is lost—

the entire amount is lost,

all one thousand dinars! For each handle is collateral for half the debt.

However,

if he pledged

a sickle handle and a silver ingot, [חתיכה של כסף שערכה רב] [a piece of silver of considerable value]

[a piece of silver of substantial value,]

we do not

say that the lender accepted the ingot as collateral for half the loan.

Since the ingot is of considerable value, it differs in this respect from the handle. For it is an item suitable for repayment. It is reasonable to assume that he accepted the ingot as collateral toward repayment: if the borrower does not repay his debt, he will collect it from the ingot, but only according to the value of the ingot.

It follows that the lender did not agree that if the ingot were lost he would lose half his debt. Rather, he agreed only to lose the value of the ingot itself.

The Nehardeans say: Even in the case of a handle and an ingot, if the ingot is lost—

half is lost. If

afterward he also loses the

handle—

the entire amount is lost!

And the Gemara raises a difficulty: But

we learned: “I lent you a sela against it, and it was worth a shekel.” And the other said: “No; rather, you lent me a sela against it, and it was worth three dinars,”—

the borrower is obligated to take an oath for admitting part of a claim.

But why? According to Shmuel, accepting collateral from the borrower is equivalent to agreeing that as long as he does not return the collateral to the borrower, the borrower need not repay his debt.

The borrower can say

to the lender:

“I accepted this

collateral [which, according to your statement, 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 was not accepting responsibility for the collateral beyond its value.

Shmuel—

deals with a case where he did not specify.

Rather, the lender accepted it without qualification. Accordingly, we say that by agreeing to accept collateral worth less than the loan, he is considered to have agreed that the borrower is not obligated to pay unless he returns the collateral to him.

And the Gemara establishes Shmuel’s statement as follows:

Shall we say

that his words are

subject to a dispute between tannaim?

As it was taught in a beraita:

One who lends money to another against collateral

when the collateral is not worth the amount of the loan,

and the collateral is lost—

the lender takes an oath

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

and he takes his money

that the borrower owes him—

the words of Rabbi Eliezer.

Rabbi Akiva says: He,

the borrower,

can say to him

to the lender:

“Did you lend me anything except against the collateral?

And it is as though we agreed between ourselves that if

“the collateral is lost, your money is lost!” [ומבואר, כי דברי שמואל הינם לשיטתו של רבי עקיבא, ואילו רבי אליעזר חולק על זה]It is thus clear that Shmuel’s statement follows the view of Rabbi Akiva, whereas Rabbi Eliezer disagrees with it.

It is clear that Shmuel’s statement follows the view of Rabbi Akiva, while Rabbi Eliezer disagrees with it.

However, if he lends one thousand dinars by means of a document and leaves collateral in his possession

worth less than the amount of the loan—

everyone agrees: if the collateral is lost—

his money is lost.

For in this case he certainly took the collateral in order to collect from it, since he has a document for this debt. And an ordinary document entails a lien upon real estate, so he has a source from which to collect. Therefore, if in addition to all this he also took collateral, he must have taken it in order to collect from it. And the Gemara discusses the words of the beraita: