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Shevuot 44

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Summary

Is Shmuel’s opinion—that a creditor who loses collateral cannot collect the loan even if the collateral was worth much less than the loan amount—the subject of a tannaitic debate? The Gemara suggests two possible tannaitic debates that could relate to this issue, but rejects both, since the basis for each argument can be explained differently.

Generally, oaths are used to exempt defendants from payment. However, in several unique circumstances delineated in the Mishna, a claimant can take an oath in order to receive payment.

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Shevuot 44

מַאי טַעְמֵיהּ דְּרַבִּי אֱלִיעֶזֶר? אֶלָּא לָאו בִּדְלָא שָׁוֵי שִׁיעוּר זוּזֵי – וּבְדִשְׁמוּאֵל קָא מִיפַּלְגִי?

what is the reasoning of Rabbi Eliezer, who holds that although the collateral was lost, the debtor is still liable to pay? Rather, is it not a case where the collateral was not worth the amount of money that he lent him? And accordingly, they disagree with regard to the ruling of Shmuel. Rabbi Akiva holds in accordance with the opinion of Shmuel, that if the collateral is lost the entire debt is canceled, and Rabbi Eliezer disagrees with this opinion.

לָא; בִּדְלָא שָׁוֵי – כּוּלֵּי עָלְמָא לֵית לְהוּ דִּשְׁמוּאֵל; וְהָכָא בִּדְשָׁוֵי שִׁיעוּר זוּזֵי, וּבִדְרַבִּי יִצְחָק קָא מִיפַּלְגִי – דְּאָמַר רַבִּי יִצְחָק: מִנַּיִן לְבַעַל חוֹב שֶׁקּוֹנֶה מַשְׁכּוֹן? שֶׁנֶּאֱמַר: ״וּלְךָ תִּהְיֶה צְדָקָה״.

The Gemara rejects this suggestion: No, in a case where the collateral was not worth the value of the loan everyone is of the opinion that the ruling is not in accordance with the opinion of Shmuel. But here the dispute is with regard to a case where the collateral was worth the amount of money that he lent him, and they disagree with regard to the opinion of Rabbi Yitzḥak. As Rabbi Yitzḥak says: From where is it derived that a creditor acquires collateral given to him and is considered its owner as long as the item is in his possession? As it is stated with regard to a creditor who returns the collateral to the debtor for his personal use: “And it shall be a righteousness for you” (Deuteronomy 24:13).

אִם אֵינוֹ קוֹנֶה מַשְׁכּוֹן, צְדָקָה מִנַּיִן לוֹ? מִכָּאן לְבַעַל חוֹב שֶׁקּוֹנֶה מַשְׁכּוֹן.

Rabbi Yitzḥak infers: If the creditor does not acquire the collateral, then from where is his righteousness? If the collateral is not his, the creditor would not be giving up anything of his own. From here it is derived that a creditor acquires the collateral. Rabbi Eliezer disagrees with this opinion, maintaining that the creditor has the halakhic status of an unpaid bailee with respect to the collateral, so that he is exempt from paying restitution if it is stolen or lost. He can therefore collect the entire debt from the debtor. Rabbi Akiva agrees with the opinion of Rabbi Yitzḥak, and holds that since the creditor acquires the collateral, he bears financial responsibility to pay its value in the event of its loss. Therefore, he must deduct the value of the collateral when collecting payment of the debt.

לֵימָא דְּרַבִּי יִצְחָק תַּנָּאֵי הִיא? וְתִיסְבְּרָא?! אֵימוֹר דְּאָמַר רַבִּי יִצְחָק – שֶׁמִּשְׁכְּנוֹ שֶׁלֹּא בִּשְׁעַת הַלְוָאָה; מִשְׁכְּנוֹ בִּשְׁעַת הַלְוָאָה מִי אָמַר?!

The Gemara asks: If so, shall we say that the opinion of Rabbi Yitzḥak is the subject of a dispute between tanna’im? The Gemara answers: And how can you understand that? Say that Rabbi Yitzḥak says that a creditor acquires the collateral in a case where he took the collateral from him not at the time of the loan, but afterward, in order to induce him to return the loan, as described in the context of the aforementioned verse. But in a case where the creditor took the collateral from him at the time of the loan, does Rabbi Yitzḥak say that he has acquired it?

אֶלָּא מִשְׁכְּנוֹ שֶׁלֹּא בִּשְׁעַת הַלְוָאָתוֹ – כּוּלֵּי עָלְמָא לָא פְּלִיגִי דְּאִית לְהוּ דְּרַבִּי יִצְחָק. וְהָכָא – בְּמִשְׁכְּנוֹ בִּשְׁעַת הַלְוָאָתוֹ,

Rather, in a case where he took the collateral from him not at the time of the loan, everyone agrees that the opinion of Rabbi Yitzḥak is accepted, and here, the dispute between Rabbi Eliezer and Rabbi Akiva is with regard to a case where he took the collateral from him at the time of the loan.

וּבְשׁוֹמֵר אֲבֵדָה קָמִיפַּלְגִי; דְּאִיתְּמַר: שׁוֹמֵר אֲבֵדָה – רַבָּה אָמַר: כְּשׁוֹמֵר חִנָּם,

And they disagree with regard to the halakhic status of one who is safeguarding a lost item that he found but has not yet returned. As it was stated: With regard to one who is safeguarding a lost item, Rabba says that his halakhic status is like that of an unpaid bailee, who is exempt from paying restitution in the event that the item is lost or stolen,

וְרַב יוֹסֵף אָמַר: כְּשׁוֹמֵר שָׂכָר דָּמֵי.

and Rav Yosef says that it is like that of a paid bailee, as while performing the mitzva of taking care of a lost item he is exempt from performing other mitzvot that involve the outlay of money, and the money that he saves is tantamount to payment received. Similarly, since safeguarding collateral is part of the mitzva to lend money to the needy, one who does so is exempt during that time from performing other mitzvot that involve the outlay of money. Therefore, Rabbi Eliezer’s ruling, that even if the collateral was lost the creditor collects the entire debt, is in accordance with the opinion of Rabba, and Rabbi Akiva’s ruling, that the creditor loses the value of the collateral, is in accordance with the opinion of Rav Yosef.

לֵימָא דְּרַב יוֹסֵף תַּנָּאֵי הִיא? לָא; בְּשׁוֹמֵר אֲבֵידָה – דְּכוּלֵּי עָלְמָא אִית לְהוּ דְּרַב יוֹסֵף; וְהָכָא בְּמַלְוֶה צָרִיךְ לְמַשְׁכּוֹן קָא מִיפַּלְגִי: מָר סָבַר מִצְוָה קָא עָבֵיד, וּמָר סָבַר לָאו מִצְוָה קָא עָבֵיד.

The Gemara asks: If so, shall we say that the opinion of Rav Yosef is the subject of a dispute between tanna’im? The Gemara rejects this suggestion: No, with regard to one who is safeguarding a lost item, everyone accepts the opinion of Rav Yosef. And here they disagree with regard to a case where the creditor needs the collateral and uses it with the permission of the debtor, deducting a usage fee from the debt. One Sage, Rabbi Akiva, holds that he is still performing a mitzva by safeguarding it, and is therefore exempt from performing other mitzvot during that time. Consequently, he has the status of a paid bailee. And one Sage, Rabbi Eliezer, holds that since he derives benefit from the collateral, he is safeguarding it for his own benefit, and is not performing a mitzva. Therefore, he has the status of an unpaid bailee.

לֵימָא כְּתַנָּאֵי: הַמַּלְוֶה אֶת חֲבֵירוֹ עַל הַמַּשְׁכּוֹן וְנִכְנְסָה שְׁמִיטָּה, אַף עַל פִּי שֶׁאֵינוֹ שָׁוֶה אֶלָּא פְּלַג – אֵינוֹ מְשַׁמֵּט. דִּבְרֵי רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל. רַבִּי יְהוּדָה הַנָּשִׂיא אוֹמֵר: אִם הָיָה מַשְׁכּוֹנוֹ כְּנֶגֶד חוֹבוֹ – אֵינוֹ מְשַׁמֵּט, וְאִם לָאו – מְשַׁמֵּט.

§ The Gemara resumes discussion of Shmuel’s statement that if the creditor loses the collateral, the debt is canceled. Let us say that Shmuel’s ruling is the subject of a dispute between tanna’im, as it is stated in a baraita with regard to the halakha that the Sabbatical Year does not abrogate debts for which collateral was taken: If one lends money to another on the basis of collateral and the Sabbatical Year commences, then even if the collateral is worth only half the value of the loan, the Sabbatical Year does not abrogate the debt; this is the statement of Rabban Shimon ben Gamliel. Rabbi Yehuda HaNasi says: If the value of the collateral was commensurate with his debt, the Sabbatical Year does not abrogate the debt, but if it was not commensurate with the debt, the Sabbatical Year abrogates the debt.

מַאי ״אֵינוֹ מְשַׁמֵּט״ דְּקָאָמַר תַּנָּא קַמָּא? אִילֵימָא כְּנֶגְדּוֹ – מִכְּלָל דְּרַבִּי יְהוּדָה הַנָּשִׂיא סָבַר: כְּנֶגְדּוֹ נָמֵי מְשַׁמֵּט?! אֶלָּא אַמַּאי תָּפֵיס מַשְׁכּוֹן?

The Gemara asks: What is the meaning of the statement: The Sabbatical Year does not abrogate the debt, which the first tanna, Rabban Shimon ben Gamliel, says? If we say it means that the Sabbatical Year does not abrogate that part of the debt that is commensurate with the collateral, but it does abrogate the rest, this indicates by inference that Rabbi Yehuda HaNasi holds that the Sabbatical Year abrogates the entire debt, including the part commensurate with the collateral as well. But if this is so, why did the creditor seize collateral from the debtor at all?

אֶלָּא לָאו כְּנֶגֶד כּוּלּוֹ – וּבְדִשְׁמוּאֵל קָא מִיפַּלְגִי?

Rather, is it not that Rabban Shimon ben Gamliel says that the Sabbatical Year does not abrogate the debt at all, and the debtor is liable to pay an amount commensurate with the entire debt? And accordingly, they disagree with regard to Shmuel’s principle that collateral is considered equivalent to the entire debt, even if it is worth less than the debt.

לָא; לְעוֹלָם כְּנֶגְדּוֹ, וּבְהָא קָמִיפַּלְגִי – תַּנָּא קַמָּא סָבַר: כְּנֶגְדּוֹ; וְרַבִּי יְהוּדָה הַנָּשִׂיא סָבַר: כְּנֶגְדּוֹ נָמֵי מְשַׁמֵּט. וּדְקָא אָמְרַתְּ: לְמַאי תָּפֵיס לֵיהּ מַשְׁכּוֹן? לְזִכְרוֹן דְּבָרִים בְּעָלְמָא.

The Gemara rejects this suggestion: No, actually, the statement of Rabban Shimon ben Gamliel that the Sabbatical Year does not abrogate the debt is referring only to the part of the debt commensurate with the collateral, and they disagree with regard to that part of the debt. The first tanna, Rabban Shimon ben Gamliel, holds that the Sabbatical Year does not abrogate the part of the debt commensurate with the collateral, and Rabbi Yehuda HaNasi holds that it abrogates the part of the debt commensurate with the collateral as well. And as for the question you said: For what purpose did he seize collateral from him at all, the answer is that he takes it merely as a reminder, to increase the likelihood that the debt will be paid.

הֲדַרַן עֲלָךְ שְׁבוּעַת הַדַּיָּינִין

מַתְנִי׳ כׇּל הַנִּשְׁבָּעִין שֶׁבַּתּוֹרָה – נִשְׁבָּעִין וְלֹא מְשַׁלְּמִין. וְאֵלּוּ נִשְׁבָּעִין וְנוֹטְלִין: הַשָּׂכִיר, וְהַנִּגְזָל, וְהַנֶּחְבָּל, וְשֶׁכְּנֶגְדּוֹ חָשׁוּד עַל הַשְּׁבוּעָה, וְחֶנְוָנִי עַל פִּנְקָסוֹ.

MISHNA: All those who take an oath that is legislated by the Torah take an oath and do not pay. By Torah law, one takes an oath only in order to exempt himself from a monetary claim. And these litigants take a rabbinically instituted oath and receive possession of the disputed funds or property, i.e., their claim is upheld by means of the oath, even though they are not in possession of the property in question: A hired worker who claims that he has not received his wages; and one who was robbed and sues the person who robbed him; and one who was injured, who claims compensation from the person who injured him; and one whose opposing litigant is suspect with regard to the taking of an oath. When a person suspected of taking false oaths is liable to take an oath in order to exempt himself, the claimant takes an oath instead and receives payment. And a storekeeper relying on his ledger also takes an oath and is paid.

הַשָּׂכִיר – כֵּיצַד? אָמַר לוֹ: ״תֵּן לִי שְׂכָרִי שֶׁיֵּשׁ לִי בְּיָדְךָ״; הוּא אוֹמֵר: ״נָתַתִּי״, וְהַלָּה אוֹמֵר: ״לֹא נָטַלְתִּי״ – הוּא נִשְׁבָּע וְנוֹטֵל. רַבִּי יְהוּדָה אוֹמֵר: עַד שֶׁתְּהֵא שָׁם מִקְצָת הוֹדָאָה. כֵּיצַד? אָמַר לוֹ: ״תֵּן לִי שְׂכָרִי חֲמִשִּׁים דִּינָר שֶׁיֵּשׁ לִי בְּיָדְךָ״, וְהוּא אוֹמֵר: ״הִתְקַבַּלְתָּ דִּינַר זָהָב״.

How does this halakha apply to the hired worker? The case is where one says to his employer: Give me my wages that are still in your possession. The employer says: I already gave them to you. And that worker says: I have not received them. In such a case, the worker takes an oath that he has not received his wages, and he receives payment from his employer. Rabbi Yehuda says: This oath cannot be administered unless there is partial admission on the part of the employer. How so? The case is where the worker said to him: Give me my wages, fifty silver dinars, which are still in your possession. And the employer says: You have already received one golden dinar, which is worth twenty-five silver dinars. Since the employer has admitted that he owes part of the sum, the worker takes an oath and is paid the whole sum.

נִגְזָל – כֵּיצַד? הָיוּ מְעִידִין אוֹתוֹ שֶׁנִּכְנַס לְבֵיתוֹ לְמַשְׁכְּנוֹ שֶׁלֹּא בִּרְשׁוּת; הוּא אוֹמֵר ״כֶּלְיִי נָטַלְתָּ״, וְהוּא אוֹמֵר ״לֹא נָטַלְתִּי״ – הוּא נִשְׁבָּע וְנוֹטֵל. רַבִּי יְהוּדָה אוֹמֵר: עַד שֶׁתְּהֵא שָׁם מִקְצָת הוֹדָאָה. כֵּיצַד? אָמַר לוֹ ״שְׁנֵי כֵּלִים נָטַלְתָּ״, וְהוּא אוֹמֵר ״לֹא נָטַלְתִּי אֶלָּא אֶחָד״.

How does this halakha apply to one who was robbed? The case is where witnesses testified about the defendant that he entered the claimant’s house to seize collateral from him without the authority to do so. The claimant said: You took items that belong to me. And the defendant said: I did not take them. The claimant takes an oath and receives payment of his claim. Rabbi Yehuda says: This oath cannot be administered unless there is partial admission on the part of the defendant. How so? The case is where the claimant said to him: You took two items. And he says: I took only one. Since the defendant admits that he took one item from the house, the claimant takes an oath and receives payment of his whole claim.

נֶחְבָּל – כֵּיצַד? הָיוּ מְעִידִים אוֹתוֹ שֶׁנִּכְנַס תַּחַת יָדוֹ שָׁלֵם וְיָצָא חָבוּל; וְאָמַר לוֹ: ״חָבַלְתָּ בִּי״, וְהוּא אוֹמֵר: ״לֹא חָבַלְתִּי״ – הֲרֵי זֶה נִשְׁבָּע וְנוֹטֵל. רַבִּי יְהוּדָה אוֹמֵר: עַד שֶׁתְּהֵא שָׁם מִקְצָת הוֹדָאָה. כֵּיצַד? אָמַר לוֹ: ״חָבַלְתָּ בִּי שְׁתַּיִם״, וְהַלָּה אוֹמֵר: ״לֹא חָבַלְתִּי בְּךָ אֶלָּא אֶחָת״.

How does this halakha apply to one who was injured? The case is where witnesses testified about the injured person that he entered into the domain of the defendant whole but left injured, and the claimant said to the defendant: You injured me. And the defendant says: I did not injure you. The injured party takes an oath and receives compensation. Rabbi Yehuda says: This oath cannot be administered unless there is partial admission. How so? The case is where the claimant said to the defendant: You injured me twice. And the other says: I injured you only once. In such a case, the injured party takes an oath that he was injured twice and receives compensation for both injuries.

שֶׁכְּנֶגְדּוֹ חָשׁוּד עַל הַשְּׁבוּעָה – כֵּיצַד?

How does this halakha apply to one whose opposing litigant is suspect with regard to the taking of an oath and therefore is not permitted to take the oath?

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I began Daf Yomi with the last cycle. I was inspired by the Hadran Siyum in Yerushalayim to continue with this cycle. I have learned Daf Yomi with Rabanit Michelle in over 25 countries on 6 continents ( missing Australia)

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Barbara Goldschlag

Silver Spring, MD, United States

I’ve been studying Talmud since the ’90s, and decided to take on Daf Yomi two years ago. I wanted to attempt the challenge of a day-to-day, very Jewish activity. Some days are so interesting and some days are so boring. But I’m still here.
Wendy Rozov
Wendy Rozov

Phoenix, AZ, United States

I started my Daf Yomi journey at the beginning of the COVID19 pandemic.

Karena Perry
Karena Perry

Los Angeles, United States

I started learning Daf Yomi because my sister, Ruth Leah Kahan, attended Michelle’s class in person and suggested I listen remotely. She always sat near Michelle and spoke up during class so that I could hear her voice. Our mom had just died unexpectedly and it made me feel connected to hear Ruth Leah’s voice, and now to know we are both listening to the same thing daily, continents apart.
Jessica Shklar
Jessica Shklar

Philadelphia, United States

In January 2020, my teaching partner at IDC suggested we do daf yomi. Thanks to her challenge, I started learning daily from Rabbanit Michelle. It’s a joy to be part of the Hadran community. (It’s also a tikkun: in 7th grade, my best friend and I tied for first place in a citywide gemara exam, but we weren’t invited to the celebration because girls weren’t supposed to be learning gemara).

Sara-Averick-photo-scaled
Sara Averick

Jerusalem, Israel

I started learning Daf Yomi inspired by תָּפַסְתָּ מְרוּבֶּה לֹא תָּפַסְתָּ, תָּפַסְתָּ מוּעָט תָּפַסְתָּ. I thought I’d start the first page, and then see. I was swept up into the enthusiasm of the Hadran Siyum, and from there the momentum kept building. Rabbanit Michelle’s shiur gives me an anchor, a connection to an incredible virtual community, and an energy to face whatever the day brings.

Medinah Korn
Medinah Korn

בית שמש, Israel

I began learning the daf in January 2022. I initially “flew under the radar,” sharing my journey with my husband and a few close friends. I was apprehensive – who, me? Gemara? Now, 2 years in, I feel changed. The rigor of a daily commitment frames my days. The intellectual engagement enhances my knowledge. And the virtual community of learners has become a new family, weaving a glorious tapestry.

Gitta Jaroslawicz-Neufeld
Gitta Jaroslawicz-Neufeld

Far Rockaway, United States

I was moved to tears by the Hadran Siyyum HaShas. I have learned Torah all my life, but never connected to learning Gemara on a regular basis until then. Seeing the sheer joy Talmud Torah at the siyyum, I felt compelled to be part of it, and I haven’t missed a day!
It’s not always easy, but it is so worthwhile, and it has strengthened my love of learning. It is part of my life now.

Michelle Lewis
Michelle Lewis

Beit Shemesh, Israel

Retirement and Covid converged to provide me with the opportunity to commit to daily Talmud study in October 2020. I dove into the middle of Eruvin and continued to navigate Seder Moed, with Rabannit Michelle as my guide. I have developed more confidence in my learning as I completed each masechet and look forward to completing the Daf Yomi cycle so that I can begin again!

Rhona Fink
Rhona Fink

San Diego, United States

Inspired by Hadran’s first Siyum ha Shas L’Nashim two years ago, I began daf yomi right after for the next cycle. As to this extraordinary journey together with Hadran..as TS Eliot wrote “We must not cease from exploration and the end of all our exploring will be to arrive where we began and to know the place for the first time.

Susan Handelman
Susan Handelman

Jerusalem, Israel

Shevuot 44

מַאי טַעְמֵיהּ דְּרַבִּי אֱלִיעֶזֶר? אֶלָּא לָאו בִּדְלָא שָׁוֵי שִׁיעוּר זוּזֵי – וּבְדִשְׁמוּאֵל קָא מִיפַּלְגִי?

what is the reasoning of Rabbi Eliezer, who holds that although the collateral was lost, the debtor is still liable to pay? Rather, is it not a case where the collateral was not worth the amount of money that he lent him? And accordingly, they disagree with regard to the ruling of Shmuel. Rabbi Akiva holds in accordance with the opinion of Shmuel, that if the collateral is lost the entire debt is canceled, and Rabbi Eliezer disagrees with this opinion.

לָא; בִּדְלָא שָׁוֵי – כּוּלֵּי עָלְמָא לֵית לְהוּ דִּשְׁמוּאֵל; וְהָכָא בִּדְשָׁוֵי שִׁיעוּר זוּזֵי, וּבִדְרַבִּי יִצְחָק קָא מִיפַּלְגִי – דְּאָמַר רַבִּי יִצְחָק: מִנַּיִן לְבַעַל חוֹב שֶׁקּוֹנֶה מַשְׁכּוֹן? שֶׁנֶּאֱמַר: ״וּלְךָ תִּהְיֶה צְדָקָה״.

The Gemara rejects this suggestion: No, in a case where the collateral was not worth the value of the loan everyone is of the opinion that the ruling is not in accordance with the opinion of Shmuel. But here the dispute is with regard to a case where the collateral was worth the amount of money that he lent him, and they disagree with regard to the opinion of Rabbi Yitzḥak. As Rabbi Yitzḥak says: From where is it derived that a creditor acquires collateral given to him and is considered its owner as long as the item is in his possession? As it is stated with regard to a creditor who returns the collateral to the debtor for his personal use: “And it shall be a righteousness for you” (Deuteronomy 24:13).

אִם אֵינוֹ קוֹנֶה מַשְׁכּוֹן, צְדָקָה מִנַּיִן לוֹ? מִכָּאן לְבַעַל חוֹב שֶׁקּוֹנֶה מַשְׁכּוֹן.

Rabbi Yitzḥak infers: If the creditor does not acquire the collateral, then from where is his righteousness? If the collateral is not his, the creditor would not be giving up anything of his own. From here it is derived that a creditor acquires the collateral. Rabbi Eliezer disagrees with this opinion, maintaining that the creditor has the halakhic status of an unpaid bailee with respect to the collateral, so that he is exempt from paying restitution if it is stolen or lost. He can therefore collect the entire debt from the debtor. Rabbi Akiva agrees with the opinion of Rabbi Yitzḥak, and holds that since the creditor acquires the collateral, he bears financial responsibility to pay its value in the event of its loss. Therefore, he must deduct the value of the collateral when collecting payment of the debt.

לֵימָא דְּרַבִּי יִצְחָק תַּנָּאֵי הִיא? וְתִיסְבְּרָא?! אֵימוֹר דְּאָמַר רַבִּי יִצְחָק – שֶׁמִּשְׁכְּנוֹ שֶׁלֹּא בִּשְׁעַת הַלְוָאָה; מִשְׁכְּנוֹ בִּשְׁעַת הַלְוָאָה מִי אָמַר?!

The Gemara asks: If so, shall we say that the opinion of Rabbi Yitzḥak is the subject of a dispute between tanna’im? The Gemara answers: And how can you understand that? Say that Rabbi Yitzḥak says that a creditor acquires the collateral in a case where he took the collateral from him not at the time of the loan, but afterward, in order to induce him to return the loan, as described in the context of the aforementioned verse. But in a case where the creditor took the collateral from him at the time of the loan, does Rabbi Yitzḥak say that he has acquired it?

אֶלָּא מִשְׁכְּנוֹ שֶׁלֹּא בִּשְׁעַת הַלְוָאָתוֹ – כּוּלֵּי עָלְמָא לָא פְּלִיגִי דְּאִית לְהוּ דְּרַבִּי יִצְחָק. וְהָכָא – בְּמִשְׁכְּנוֹ בִּשְׁעַת הַלְוָאָתוֹ,

Rather, in a case where he took the collateral from him not at the time of the loan, everyone agrees that the opinion of Rabbi Yitzḥak is accepted, and here, the dispute between Rabbi Eliezer and Rabbi Akiva is with regard to a case where he took the collateral from him at the time of the loan.

וּבְשׁוֹמֵר אֲבֵדָה קָמִיפַּלְגִי; דְּאִיתְּמַר: שׁוֹמֵר אֲבֵדָה – רַבָּה אָמַר: כְּשׁוֹמֵר חִנָּם,

And they disagree with regard to the halakhic status of one who is safeguarding a lost item that he found but has not yet returned. As it was stated: With regard to one who is safeguarding a lost item, Rabba says that his halakhic status is like that of an unpaid bailee, who is exempt from paying restitution in the event that the item is lost or stolen,

וְרַב יוֹסֵף אָמַר: כְּשׁוֹמֵר שָׂכָר דָּמֵי.

and Rav Yosef says that it is like that of a paid bailee, as while performing the mitzva of taking care of a lost item he is exempt from performing other mitzvot that involve the outlay of money, and the money that he saves is tantamount to payment received. Similarly, since safeguarding collateral is part of the mitzva to lend money to the needy, one who does so is exempt during that time from performing other mitzvot that involve the outlay of money. Therefore, Rabbi Eliezer’s ruling, that even if the collateral was lost the creditor collects the entire debt, is in accordance with the opinion of Rabba, and Rabbi Akiva’s ruling, that the creditor loses the value of the collateral, is in accordance with the opinion of Rav Yosef.

לֵימָא דְּרַב יוֹסֵף תַּנָּאֵי הִיא? לָא; בְּשׁוֹמֵר אֲבֵידָה – דְּכוּלֵּי עָלְמָא אִית לְהוּ דְּרַב יוֹסֵף; וְהָכָא בְּמַלְוֶה צָרִיךְ לְמַשְׁכּוֹן קָא מִיפַּלְגִי: מָר סָבַר מִצְוָה קָא עָבֵיד, וּמָר סָבַר לָאו מִצְוָה קָא עָבֵיד.

The Gemara asks: If so, shall we say that the opinion of Rav Yosef is the subject of a dispute between tanna’im? The Gemara rejects this suggestion: No, with regard to one who is safeguarding a lost item, everyone accepts the opinion of Rav Yosef. And here they disagree with regard to a case where the creditor needs the collateral and uses it with the permission of the debtor, deducting a usage fee from the debt. One Sage, Rabbi Akiva, holds that he is still performing a mitzva by safeguarding it, and is therefore exempt from performing other mitzvot during that time. Consequently, he has the status of a paid bailee. And one Sage, Rabbi Eliezer, holds that since he derives benefit from the collateral, he is safeguarding it for his own benefit, and is not performing a mitzva. Therefore, he has the status of an unpaid bailee.

לֵימָא כְּתַנָּאֵי: הַמַּלְוֶה אֶת חֲבֵירוֹ עַל הַמַּשְׁכּוֹן וְנִכְנְסָה שְׁמִיטָּה, אַף עַל פִּי שֶׁאֵינוֹ שָׁוֶה אֶלָּא פְּלַג – אֵינוֹ מְשַׁמֵּט. דִּבְרֵי רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל. רַבִּי יְהוּדָה הַנָּשִׂיא אוֹמֵר: אִם הָיָה מַשְׁכּוֹנוֹ כְּנֶגֶד חוֹבוֹ – אֵינוֹ מְשַׁמֵּט, וְאִם לָאו – מְשַׁמֵּט.

§ The Gemara resumes discussion of Shmuel’s statement that if the creditor loses the collateral, the debt is canceled. Let us say that Shmuel’s ruling is the subject of a dispute between tanna’im, as it is stated in a baraita with regard to the halakha that the Sabbatical Year does not abrogate debts for which collateral was taken: If one lends money to another on the basis of collateral and the Sabbatical Year commences, then even if the collateral is worth only half the value of the loan, the Sabbatical Year does not abrogate the debt; this is the statement of Rabban Shimon ben Gamliel. Rabbi Yehuda HaNasi says: If the value of the collateral was commensurate with his debt, the Sabbatical Year does not abrogate the debt, but if it was not commensurate with the debt, the Sabbatical Year abrogates the debt.

מַאי ״אֵינוֹ מְשַׁמֵּט״ דְּקָאָמַר תַּנָּא קַמָּא? אִילֵימָא כְּנֶגְדּוֹ – מִכְּלָל דְּרַבִּי יְהוּדָה הַנָּשִׂיא סָבַר: כְּנֶגְדּוֹ נָמֵי מְשַׁמֵּט?! אֶלָּא אַמַּאי תָּפֵיס מַשְׁכּוֹן?

The Gemara asks: What is the meaning of the statement: The Sabbatical Year does not abrogate the debt, which the first tanna, Rabban Shimon ben Gamliel, says? If we say it means that the Sabbatical Year does not abrogate that part of the debt that is commensurate with the collateral, but it does abrogate the rest, this indicates by inference that Rabbi Yehuda HaNasi holds that the Sabbatical Year abrogates the entire debt, including the part commensurate with the collateral as well. But if this is so, why did the creditor seize collateral from the debtor at all?

אֶלָּא לָאו כְּנֶגֶד כּוּלּוֹ – וּבְדִשְׁמוּאֵל קָא מִיפַּלְגִי?

Rather, is it not that Rabban Shimon ben Gamliel says that the Sabbatical Year does not abrogate the debt at all, and the debtor is liable to pay an amount commensurate with the entire debt? And accordingly, they disagree with regard to Shmuel’s principle that collateral is considered equivalent to the entire debt, even if it is worth less than the debt.

לָא; לְעוֹלָם כְּנֶגְדּוֹ, וּבְהָא קָמִיפַּלְגִי – תַּנָּא קַמָּא סָבַר: כְּנֶגְדּוֹ; וְרַבִּי יְהוּדָה הַנָּשִׂיא סָבַר: כְּנֶגְדּוֹ נָמֵי מְשַׁמֵּט. וּדְקָא אָמְרַתְּ: לְמַאי תָּפֵיס לֵיהּ מַשְׁכּוֹן? לְזִכְרוֹן דְּבָרִים בְּעָלְמָא.

The Gemara rejects this suggestion: No, actually, the statement of Rabban Shimon ben Gamliel that the Sabbatical Year does not abrogate the debt is referring only to the part of the debt commensurate with the collateral, and they disagree with regard to that part of the debt. The first tanna, Rabban Shimon ben Gamliel, holds that the Sabbatical Year does not abrogate the part of the debt commensurate with the collateral, and Rabbi Yehuda HaNasi holds that it abrogates the part of the debt commensurate with the collateral as well. And as for the question you said: For what purpose did he seize collateral from him at all, the answer is that he takes it merely as a reminder, to increase the likelihood that the debt will be paid.

הֲדַרַן עֲלָךְ שְׁבוּעַת הַדַּיָּינִין

מַתְנִי׳ כׇּל הַנִּשְׁבָּעִין שֶׁבַּתּוֹרָה – נִשְׁבָּעִין וְלֹא מְשַׁלְּמִין. וְאֵלּוּ נִשְׁבָּעִין וְנוֹטְלִין: הַשָּׂכִיר, וְהַנִּגְזָל, וְהַנֶּחְבָּל, וְשֶׁכְּנֶגְדּוֹ חָשׁוּד עַל הַשְּׁבוּעָה, וְחֶנְוָנִי עַל פִּנְקָסוֹ.

MISHNA: All those who take an oath that is legislated by the Torah take an oath and do not pay. By Torah law, one takes an oath only in order to exempt himself from a monetary claim. And these litigants take a rabbinically instituted oath and receive possession of the disputed funds or property, i.e., their claim is upheld by means of the oath, even though they are not in possession of the property in question: A hired worker who claims that he has not received his wages; and one who was robbed and sues the person who robbed him; and one who was injured, who claims compensation from the person who injured him; and one whose opposing litigant is suspect with regard to the taking of an oath. When a person suspected of taking false oaths is liable to take an oath in order to exempt himself, the claimant takes an oath instead and receives payment. And a storekeeper relying on his ledger also takes an oath and is paid.

הַשָּׂכִיר – כֵּיצַד? אָמַר לוֹ: ״תֵּן לִי שְׂכָרִי שֶׁיֵּשׁ לִי בְּיָדְךָ״; הוּא אוֹמֵר: ״נָתַתִּי״, וְהַלָּה אוֹמֵר: ״לֹא נָטַלְתִּי״ – הוּא נִשְׁבָּע וְנוֹטֵל. רַבִּי יְהוּדָה אוֹמֵר: עַד שֶׁתְּהֵא שָׁם מִקְצָת הוֹדָאָה. כֵּיצַד? אָמַר לוֹ: ״תֵּן לִי שְׂכָרִי חֲמִשִּׁים דִּינָר שֶׁיֵּשׁ לִי בְּיָדְךָ״, וְהוּא אוֹמֵר: ״הִתְקַבַּלְתָּ דִּינַר זָהָב״.

How does this halakha apply to the hired worker? The case is where one says to his employer: Give me my wages that are still in your possession. The employer says: I already gave them to you. And that worker says: I have not received them. In such a case, the worker takes an oath that he has not received his wages, and he receives payment from his employer. Rabbi Yehuda says: This oath cannot be administered unless there is partial admission on the part of the employer. How so? The case is where the worker said to him: Give me my wages, fifty silver dinars, which are still in your possession. And the employer says: You have already received one golden dinar, which is worth twenty-five silver dinars. Since the employer has admitted that he owes part of the sum, the worker takes an oath and is paid the whole sum.

נִגְזָל – כֵּיצַד? הָיוּ מְעִידִין אוֹתוֹ שֶׁנִּכְנַס לְבֵיתוֹ לְמַשְׁכְּנוֹ שֶׁלֹּא בִּרְשׁוּת; הוּא אוֹמֵר ״כֶּלְיִי נָטַלְתָּ״, וְהוּא אוֹמֵר ״לֹא נָטַלְתִּי״ – הוּא נִשְׁבָּע וְנוֹטֵל. רַבִּי יְהוּדָה אוֹמֵר: עַד שֶׁתְּהֵא שָׁם מִקְצָת הוֹדָאָה. כֵּיצַד? אָמַר לוֹ ״שְׁנֵי כֵּלִים נָטַלְתָּ״, וְהוּא אוֹמֵר ״לֹא נָטַלְתִּי אֶלָּא אֶחָד״.

How does this halakha apply to one who was robbed? The case is where witnesses testified about the defendant that he entered the claimant’s house to seize collateral from him without the authority to do so. The claimant said: You took items that belong to me. And the defendant said: I did not take them. The claimant takes an oath and receives payment of his claim. Rabbi Yehuda says: This oath cannot be administered unless there is partial admission on the part of the defendant. How so? The case is where the claimant said to him: You took two items. And he says: I took only one. Since the defendant admits that he took one item from the house, the claimant takes an oath and receives payment of his whole claim.

נֶחְבָּל – כֵּיצַד? הָיוּ מְעִידִים אוֹתוֹ שֶׁנִּכְנַס תַּחַת יָדוֹ שָׁלֵם וְיָצָא חָבוּל; וְאָמַר לוֹ: ״חָבַלְתָּ בִּי״, וְהוּא אוֹמֵר: ״לֹא חָבַלְתִּי״ – הֲרֵי זֶה נִשְׁבָּע וְנוֹטֵל. רַבִּי יְהוּדָה אוֹמֵר: עַד שֶׁתְּהֵא שָׁם מִקְצָת הוֹדָאָה. כֵּיצַד? אָמַר לוֹ: ״חָבַלְתָּ בִּי שְׁתַּיִם״, וְהַלָּה אוֹמֵר: ״לֹא חָבַלְתִּי בְּךָ אֶלָּא אֶחָת״.

How does this halakha apply to one who was injured? The case is where witnesses testified about the injured person that he entered into the domain of the defendant whole but left injured, and the claimant said to the defendant: You injured me. And the defendant says: I did not injure you. The injured party takes an oath and receives compensation. Rabbi Yehuda says: This oath cannot be administered unless there is partial admission. How so? The case is where the claimant said to the defendant: You injured me twice. And the other says: I injured you only once. In such a case, the injured party takes an oath that he was injured twice and receives compensation for both injuries.

שֶׁכְּנֶגְדּוֹ חָשׁוּד עַל הַשְּׁבוּעָה – כֵּיצַד?

How does this halakha apply to one whose opposing litigant is suspect with regard to the taking of an oath and therefore is not permitted to take the oath?

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