Shevuot 44a (מד.) — the Talmud in English

What are the circumstances?

With regard to which collateral did Rabbi Eliezer and Rabbi Akiva disagree:

If it was worth the amount of the dinars

of the loan,

what is the reasoning of Rabbi Eliezer

who maintains that the lender lost nothing and may take an oath and collect—and why? After all, when he took collateral worth the amount of the loan, he took it for collection, and he is therefore responsible for it?!

Rather, is it not

a case

where it was not worth

the collateral

the amount of the dinars

over which they disagreed.

And in

the words

of Shmuel they disagree—

whether the lender takes the collateral on the understanding that the borrower is not obligated to repay his debt unless the lender returns the collateral to him, and therefore, if it was lost, Rabbi Akiva maintains that the lender is responsible for it and has consequently lost his debt,

or whether he took it merely as a reminder between himself and the borrower, and certainly did not take it with responsibility for it. Therefore, Rabbi Eliezer maintains contrary to Shmuel that the borrower has no claim against the lender; the lender must take an oath that he was not negligent with it, as is the law governing an unpaid bailee, and the borrower, who owns the collateral, remains obligated to repay his debt.

The Gemara rejects this:

No, in

a case

where it was not worth

the collateral the amount of the loan—

everyone does not accept the ruling of Shmuel,

but certainly the lender took the collateral merely as a reminder and not in order to collect the debt from it. Therefore, if the collateral was lost, he is not responsible for it.

And here

the tannaim in the beraita disagree

when it was worth

the collateral

the amount of the dinars, and they disagree with regard to Rabbi Yitzhak’s ruling!

As Rabbi Yitzhak said: From where is it derived that a creditor acquires collateral

and is considered its owner?

As it is stated: “And for you [

the lender who returns the collateral in the evening and in the morning]

it shall be charity.” And if the lender does not acquire

the collateral

and does not become its owner,

how does he have

“charity”?

After all, a person cannot perform charity with an item that does not belong to him,

Rather

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

and by returning it to the borrower, he is like one who has given him charity from his own property!

Accordingly, the lender is certainly also responsible for theft and loss of the collateral. For he is considered its owner, and it is under his responsibility; and Rabbi Yitzhak holds like Rabbi Akiva, that the lender bears responsibility for the collateral, whereas Rabbi Eliezer disagrees with him. Therefore, if the collateral was lost, the lender takes an oath and collects his money.

The Gemara asks: If so,

shall we say

the ruling

of Rabbi Yitzhak,

whether a creditor acquires collateral—

is it dependent on a dispute between tannaim?

And can you understand

the statement of Rabbi Yitzhak in this way:

I might say that Rabbi Yitzhak said

that the lender becomes the owner of the collateral only where

he took it not at the time of the loan,

but when the repayment date arrived and the borrower did not repay, and the lender summoned him before the court to provide collateral for the debt. A court agent then took it, on the condition that if he did not repay the debt, it would be collected from the collateral. It was with regard to this that Rabbi Yitzhak said that a creditor acquires collateral, since it came into his possession as an object of collection.

But if

he took it at the time of the loan, who said

that Rabbi Yitzhak said that the lender becomes the owner? For there is no necessity to say that he took it as collateral in order to collect the debt from it; rather, he may have taken it merely as a reminder, so that the lender and the borrower would remember the debt.

But here, the case concerns collateral taken at the time he lent him the money. If so, the dispute between Rabbi Eliezer and Rabbi Akiva cannot be understood as referring to the ruling of Rabbi Yitzhak, since they did not disagree with regard to such a case!

Rather,

certainly

when he took it not at the time of the loan, everyone agrees

that if the collateral was lost, he lost the corresponding loan money, and

they accept

Rabbi Yitzhak’s ruling

that a creditor acquires collateral, and it is therefore under his responsibility.

And here

Rabbi Eliezer and Rabbi Akiva disagreed

with regard to collateral taken at the time of the loan, and they disagree with regard to the status of one who safeguards a lost item,

whether a bailee who fulfills a mitzva through his safeguarding is considered an unpaid bailee or a paid bailee, and will therefore be liable for theft and loss as is a paid bailee. This lender, too, fulfills a mitzva through his loan. And the collateral that he takes when lending the money, and is obligated to safeguard, he is compelled to safeguard by virtue of the mitzva of lending.