Shevuot 44b (מד:) — the Talmud in English

It was stated: A finder of a lost article who safeguards it.

A person who found a lost article and safeguards it by virtue of the mitzva of returning a lost article,

Rabba said:

his status is

that of an unpaid bailee and he is exempt if it is stolen or lost,

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and Rav Yosef said:

his status is

that of a paid bailee—

by virtue of the reward for the mitzva.

Accordingly, the dispute between the tannaim is as follows: Rabbi Eliezer agrees with Rabba, since he considers him merely an unpaid bailee; therefore, the lender swears that he was not negligent and takes his money. Rabbi Akiva, however, agrees with Rav Yosef, holding that he is liable for theft and loss by virtue of the law of a paid bailee.

But now one must inquire: It is certain that Rabbi Akiva does not accept Rabba’s ruling, since Rabbi Akiva holds the lender liable with regard to the collateral. But is it possible to establish Rav Yosef’s statement as applying even according to Rabbi Eliezer, so that they do not actually dispute his statement? Or

shall we say that

his status according to

Rav Yosef is

a dispute between

tannaim

?

The Gemara resolves this:

No.

The words of Rav Yosef are disputed

with regard to a finder of a lost article who safeguards it

while occupied with a mitzva.

Everyone accepts Rav Yosef’s position,

that he is a paid bailee by virtue of the reward for the mitzva and is liable for theft and loss.

Here,

the case is that the

lender needs the collateral

in order to use it, and thereby deducts from the borrower’s debt the rental value of the collateral. And in this manner

they dispute.

One Master,

Rabbi Akiva, holds:

he is performing a mitzva,

since while he is using the collateral, the debt is gradually reduced, and this is a mitzva. He is therefore a paid bailee by virtue of this mitzva.

And the other Master,

Rabbi Eliezer,

holds that when the lender uses the collateral for himself,

he is using it for his own benefit—

he is not performing a mitzva.

Since his intention is his own benefit, he is an unpaid bailee.

The Gemara still investigates:

Shall we say that Samuel’s statement—that if the lender lost the collateral, he lost the loan, even if the collateral was worth less than the loan—is

the same as this dispute between tannaim?

Like these

tannaim:

If one lends money to another against collateral, and the year of

the

Shemitta

entered [and the law is that a loan secured by collateral is not canceled by Shemitta, since the verse “he shall not press his fellow” does not apply, as he does not press him but collects from the collateral],

Even though it is not worth

the collateral

more than half

of the debt—

the debt is not canceled [

it will be explained below whether the intention is that only that half is not canceled or that the entire debt is not canceled]

these are the words of Rabban Shimon ben Gamliel.

Rabbi Yehuda HaNasi says: If his collateral was equal to his debt, the debt is not canceled; but if not, it is canceled.

The Gemara analyzes this:

What does the first tanna mean by saying that the debt is not canceled? If you say

that it is not canceled only

to the extent of

the collateral, but the remainder of the loan, which is not secured by collateral, is canceled,

by inference, Rabbi Yehuda HaNasi,

who disagreed and said that if the collateral does not equal the entire debt, the debt is canceled,

holds that even to the extent

of the collateral

it too is canceled,

and the entire debt is canceled, including the half corresponding to the collateral.

And if so, this is difficult:

Rather, why does

the lender seize

the collateral,

when half the debt is secured by collateral? Why should he not collect half the debt from it, so that this portion will not be canceled?

Rather, is it not

that when the first tanna says that if there is collateral for half the debt the debt is not canceled, this means

to the extent of the entire debt.

And this is in accordance with Samuel, who holds that although the collateral is not worth the entire debt, it is considered as though it were worth the entire debt. The borrower need not repay him any part of the debt until he returns the collateral. Therefore, the debt is not canceled at all.

And they dispute Samuel’s position:

The first tanna agrees with Samuel that even if the collateral is worth only half the debt, the entire debt is not canceled. Rabbi Yehuda HaNasi does not accept Samuel’s ruling; therefore, only the amount corresponding to the value of the collateral is not canceled.

The Gemara rejects this:

No;

none of these tannaim agrees with Samuel. The first tanna also holds that

in every case, only to its extent

the portion of the debt for which there is collateral is not canceled. The fact that the collateral secures half the debt does not make it collateral for the entire debt.

And this is what they dispute: The first tanna holds: To its extent.

That is, the portion corresponding to the collateral is not canceled, while the remainder is canceled.

And Rabbi Yehuda HaNasi holds

that even

to its extent

of the collateral

it too is canceled.

For this collateral does not render the debt as though it had been collected and was in his possession.

And as for what you said—

why does he seize the collateral,

if not so that the debt would be considered collected and in his possession?

Your answer is:

As a mere record of the matter,

so that there will be between them, between the lender and the borrower, a reminder of the debt, but not collateral for collection. Therefore, since it is not considered as though the debt were collected and in his possession, the entire debt is canceled.

We have returned to you, chapter Shevuat HaDayyanim

Chavruta - Shevuot — Chapter Seven - All Those Who Take Oaths" source: "https://www.toratemetfreeware.com/online/f02362.html#HtmpReportNum0006L5" chapteranchor: "HtmpReportNum0006L5" ---

In the preceding chapters, the laws of an oath mandated by the Torah were explained—an oath that one takes in order to be exempt from a monetary claim. For example, if a bailee claims that he did not unlawfully appropriate an object entrusted to him, but that it was lost through circumstances beyond his control, he takes the oath of bailees in order to be exempt from payment for the object. And so it is with all oaths mandated by the Torah: they do not involve taking an oath in order to extract money, but only in order to be exempt from payment.

The Gemara will later (45a) learn this principle from the verse stated with regard to the oath of bailees (Exodus 22:10): “And its owner shall accept it, and he shall not pay.” The Gemara expounds: “And its owner shall accept it”—the owner of the deposit shall receive the oath from the bailee; and consequently, “he shall not pay”—the bailee does not pay, since he has been exempted by this oath.

The Sages added and instituted the “oath of those who take” [also called the “oath of the Mishna”

],

whose laws and rationales are explained below, in the Mishna and Gemara. Through this oath, those listed in the following Mishna can take money by means of their oath, and not merely be exempt from the claim.

!

Mishna:

All those who take oaths mandated by the Torah—those obligated by the Torah to take an oath [namely, bailees, one who admits to part of a claim, and one against whom there is one witness ], take an oath in order to be exempt , and do not pay! There is no oath mandated by the Torah whose purpose is to take money through it. Rather, anyone who takes an oath mandated by the Torah takes it only in order to be exempt from a monetary claim. However, the Sages instituted that, in certain circumstances, it is possible to take an oath and take money through it, as the Mishna explains below. And these are the claimants of money for whom the Sages instituted that they take an oath by rabbinic ordinance , and take money through it: The hired laborer, the robbed person, and the injured person, [the Mishna will explain below the circumstances and the law under which each of these takes an oath and collects]. And likewise, in the case of any claimant who obligates the defendant to take an oath, if the defendant is standing opposite him and is suspect with regard to oaths. For example, if someone claims against another, and the defendant admits to part of the claim and thereby becomes obligated to take an oath, and the defendant, who is standing opposite the claimant, is suspect with regard to oaths and consequently cannot take one, the Sages instituted that the claimant should take an oath and collect! And this is likewise the law with regard to a shopkeeper who records his customers’ debts in his ledger, and the Mishna will explain below the circumstances in which he is entitled to take an oath and collect. The hired laborer mentioned above, who takes an oath and collects— how is this law realized in his case? He said to him —the worker, the hired laborer, to the employer: “Give me my wages that you have in your possession” on account of my work for you! And he, the employer, says : I have already given you your wages . And if the other one —the worker— says: “I did not take them!” He, the hired laborer, , takes an oath that he did not receive his wages and collects them from the employer. This is the oath of those who take money mentioned in our Mishna, in which the hired laborer takes an oath and collects. Rabbi Yehuda says: This hired laborer does not take an oath and collect unless there is a partial admission! How so? — He said to him , the hired laborer: “Give me my wages in the amount of fifty gold dinars of silver that you have in your possession.” And he, the employer, says: “You received a dinar of gold worth twenty-five silver dinars.” This employer has admitted to part of the hired laborer’s claim and consequently becomes obligated by an oath mandated by the Torah, since he admitted to part of the claim. Rabbi Yehuda holds that only in such a case did the Sages institute the reversal of the oath—that is, to take it from the defendant and impose it upon the claimant as a rabbinic oath, so that he can collect his wages through it. And likewise, according to Rabbi Yehuda, all those whom the Mishna states take an oath and collect do so only if there was a partial admission! And so we learned above that the robbed person takes an oath and collects. How so? — There were witnesses who testified concerning him, the robber, that he entered his house —the house of the robbed person— to pledge it in order to take objects from him as collateral for a loan debt, and he did so without permission. The witnesses did not see with how many objects, or which objects, he left the robbed person’s house. They saw only that he entered empty-handed and emerged with vessels inserted between the folds of his garment. He , the robbed person, says: “You took my vessels.” And he , the robber, says: “I did not take anything!” Thus he, the robbed person, takes an oath and collects what he claims was robbed from him. For the witnesses testify that the robber pledged property and took it from him without permission. [There is no dispute between them concerning the vessels that he took as collateral. Rather, the robbed person claims that he took additional objects and hid them beneath the folds of his garment, and therefore the witnesses did not notice them. The robber is obligated to pay on the basis of the robbed person’s oath because the witnesses saw the robber enter in order to take collateral unlawfully. Therefore, the robbed person’s claim that additional objects, unrelated to the collateral and the loan, were robbed from him has a basis. Consequently, the Sages instituted that the robbed person takes an oath and collects]. Rabbi Yehuda says: The robbed person takes an oath and collects only unless there is a partial admission. How will this admission be made? — He said to him , the robbed person: “You took two vessels in addition to the collateral,” and he , the robber, says: “I took only one vessel!” He has admitted to part of the robbery claim brought against him by the robbed person, and he is therefore obligated by the Torah’s oath for one who admits to part of a claim. Therefore, the Sages reversed the oath and imposed it upon the robbed person, who takes a rabbinic oath and collects. The injured person , whom we learned above takes an oath and collects— how so? There were witnesses who testified concerning him , the injured person, that he entered the assailant’s control while whole in body, without injury, and emerged from the assailant’s hands injured. The witnesses did not see the act of injury itself; they saw only that he emerged injured. And he said to him , the injured person: “You injured me!” and you are obligated to pay me compensation for the injury you caused me! And he says: “I did not injure you, but you were injured by yourself!” In this case, the injured person takes an oath that the assailant injured him, and collects compensation for his injury from him. Rabbi Yehuda says: The injured person does not take an oath and collect compensation for the injury unless there is a partial admission! How so? — He said to him , the injured person: “You injured me twice.” Two injuries. And the other one , the assailant, says: “I injured you only once.” The assailant is obligated by the oath mandated by the Torah, since he admitted to part of the claim. The Sages reversed the oath and imposed it upon the injured person, who takes an oath and collects compensation for the injury. And likewise we learned: “When the person opposite him is suspect with regard to the oath,” when a person is sued and becomes obligated to take an oath to the other party, but is suspect with regard to oaths [as the Mishna explains below ] He—the claimant—takes an oath and collects.

How?

By what does the defendant become suspected with regard to an oath?