Shevuot 44a — the Talmud in English

How is this?

With what collateral did Rabbi Eliezer and Rabbi Akiva disagree:

if it was worth the amount of the dinars

of the loan,

what is the reason of Rabbi Eliezer

who holds that the lender lost nothing but shall take an oath and collect—and why? But when he took collateral worth the amount of the loan, he took it for collection, and behold, he is liable for it?!

Rather, is it not

in a case

that it was not worth

the collateral

the amount of the dinars

that they disagreed?

And in

the words

of Shmuel they disagree—

whether the lender takes the collateral with the understanding that the borrower is not required to repay his debt unless the lender returns the collateral to him, and therefore, if it was lost, Rabbi Akiva holds—the lender is liable for it, and consequently he has lost his debt,

or he took it only as a mere reminder between him and the borrower, and certainly he did not take it with liability. And therefore Rabbi Eliezer holds not in accordance with Shmuel, that the borrower has no claim against the lender, and he shall take an oath that he was not negligent with it, as is the law of an unpaid bailee, and the borrower, the owner of the collateral, is liable to repay his debt.

And the Gemara rejects:

no, in

a case

that it was not worth

the collateral the amount of the loan debt—

everyone does not hold of Shmuel,

but certainly the lender took the collateral as a mere reminder and not in order to repay his debt from it, and therefore, if the collateral was lost, he is not liable for it.

But here

the tannaim in the beraita disagreed

when it was worth

the collateral

the amount of the dinars, and they disagree concerning Rabbi Yitzḥak!

For Rabbi Yitzḥak said: From where is it derived that a creditor acquires the collateral

so that he is considered an owner of the collateral?

As it is stated, “And to you

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

shall be charity.” And if he does not acquire

the lender

the collateral,

and does not become like its owner

, from where does he have charity?

For a person does not perform charity with something that is not his own,

Rather

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

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

And according to this, certainly the lender is also liable for theft and loss of the collateral. For he is considered its owner, and it is under his liability; and Rabbi Yitzḥak holds like Rabbi Akiva, that the lender has liability for the collateral, whereas Rabbi Eliezer disagrees with him. And therefore, if the collateral was lost, the lender shall take an oath and collect his money.

The Gemara asks: If so,

shall we say

the ruling

of Rabbi Yitzḥak,

whether a creditor acquires the collateral—

is it a dispute between tannaim?

And can you understand

the words of Rabbi Yitzḥak:

I may say that Rabbi Yitzḥak said

that the lender becomes the owner of the collateral only where

he took it as collateral not at the time of the loan,

but when the repayment time arrived and he did not repay, and the lender sued him in court to give him collateral for this, and then an agent of the court took it, so that if he did not repay him, it would be collected from it. And concerning this Rabbi Yitzḥak said that a creditor acquires the collateral, since it came into his possession by way of collection.

But if

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

Rabbi Yitzḥak that the lender becomes the owner? For it is not certain that he took it as collateral in order to collect from it, but only as a mere reminder, so that the lender and the borrower would remember the debt?

And here, after all, it is speaking of a case where he took it as collateral at the time that he lent to him. And if so, the dispute between Rabbi Eliezer and Rabbi Akiva cannot be established as referring to the words of Rabbi Yitzḥak, since they did not disagree about such a case!

Rather,

certainly

when he took it as collateral not at the time of the loan, everyone does not disagree

that if he lost the collateral, he lost the loan money corresponding to it, and

they do hold

of Rabbi Yitzḥak

that a creditor acquires the collateral and it is under his liability.

But here

Rabbi Eliezer and Rabbi Akiva disagreed

when he took it as collateral at the time of his lending, and they disagree concerning the keeper of a lost item,

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