שבועות 43:2 — Soncino English Talmud

GEMARA. To what does it refer? Shall we say, to the last clause? You may infer this [in any case], for the oath devolves upon the lender! — Said Samuel: It refers to the first clause: and so said R. Hiyya b. Rab: It refers to the first clause; and so said R. Johanan: It refers to the first clause. — Which first clause? The latter part of the first clause: ‘I LENT YOU A SELA’ ON IT, AND IT WAS WORTH A SHEKEL,’ AND THE OTHER SAYS: ‘NO! YOU LENT ME A SELA’ ON IT, AND IT WAS WORTH THREE DENARII,’ HE IS LIABLE. For here the oath devolves upon the borrower, but the Rabbis removed it from the borrower, and imposed it upon the lender. But now that R. Ashi has said that we have established that this one swears that it is not in his possession, and the other one swears how much it was worth, he means thus: WHO TAKES THE OATH first? HE WHO HAD THE DEPOSIT, LEST, IF THE OTHER TAKE THE OATH [FIRST], THIS ONE MAY BRING OUT THE DEPOSIT. Samuel said: If one lent a thousand zuz to his neighbour, who deposited with him as a pledge the handle of a saw; if the handle of the saw was lost, the thousand zuz are lost; but in the case of two handles we do not say this. But R. Nahman Says, even in the case of two handles, if he lost one, he loses five hundred [zuz], if he lost [also] the other, he loses the whole [loan]; but in the case of a handle and a bar [of silver] we do not say this. The Nehardeans say, even in the case of a handle and silver bar, if he lost the silver bar, he loses half [the loan], if he lost [also] the handle, he loses the whole [loan]. We learnt: ‘I LENT YOU A SELA’ ON IT, AND IT WAS WORTH A SHEKEL,’ AND THE OTHER SAYS: ‘NO! YOU LENT ME A SELA’ ON IT, AND IT WAS WORTH THREE DENARII,’ HE IS LIABLE. — [Now why?] Let him say to him: ‘But you accepted it [as security]’! — Our Mishnah [refers to a case] where he stated explicitly; and Samuel [refers to a case] where he did not state this explicitly. Shall we say that Tannaim [disagree on this point]? [For it was taught:] If a man lends his neighbour [money] on a pledge, and the pledge was lost, he swears, and takes his money: this is the opinion of R. Eliezer. R. Akiba says: He may say to him: ‘Did you not lend me because of the pledge? Since the pledge is lost, your money is lost.’ But if one lends a thousand zuz on a bond, and he deposited a pledge with him, all agree that if the pledge is lost, the money is lost. — Now, how is this? If the pledge is equal to the amount of the loan,^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ^ᵐ^ⁿ^ᵒ^ᵖ^ᵠ^ʳ^ˢ^ᵗ

^ᵃnote:The statement of the Mishnah that the lender takes the oath.
^ᵇnote:Where the borrower claims a sela’ from the lender, and the lender admits owing him a denar.
^ᶜnote:For he is the one who admits a portion of the claim.
^ᵈnote:For the reason given in the Mishnah.
^ᵉnote:The lender.
^ᶠnote:For he may not have lost the pledge, but may have become enamoured of it and desired to retain it; he therefore says that he lost it, and wishes to pay its value. Consequently, he must take an oath that it is really not in his possession.
^ᵍnote:The borrower.
^ʰnote:In the latter part of the first clause (where the oath devolves upon the borrower) to which this question of the Mishnah refers.
^ⁱnote:Takes the oath that it is not in his possession; he cannot now produce the deposit.
^ʲnote:About the value of the deposit.
^ᵏnote:And show that the other had sworn falsely as to its value.
^ˡnote:Which is worth much less than the loan.
^ᵐnote:Because the lender accepted it as sufficient security.
^ⁿnote:That he accepted each handle as security for 500 zuz, and if he loses one handle, he loses 500 zuz. For he did not specifically say that he accepted each handle as security for half the loan. We therefore say that both handles together are the pledge for the loan, and if he loses one handle, as long as the other is left, he may restore it to the borrower; and he deducts from the loan merely the value of the lost handle, and not 500 zuz.
^ᵒnote:That he accepted the silver bar as security for half the loan, for since a silver bar is sufficiently valuable to be accepted as part payment, the lender accepted it as a pledge only up to its value,
^ᵖnote:Why should the borrower have to take an oath? Let him say to the lender: ‘You accepted the pledge as security for your loan, and since you have lost the pledge, you have lost your money!’ Since the Mishnah does not say this, it conflicts with the view of Samuel!
^ᵠnote:That he accepts the pledge as security only up to its value.
^ʳnote:But simply accepted the pledge; we assume therefore that he accepted it as full security for the whole amount of the loan; and if he loses the pledge, he loses the loan.
^ˢnote:That he has lost it.
^ᵗnote:For since the lender has a document that the other owes him the money, what need is there for a pledge? Obviously, therefore, he took the pledge to secure himself, that if the borrower would not pay (or would have no means to pay) he would keep the pledge. The pledge was therefore not merely a reminder of the loan but a possible source of repayment (for, as a reminder of the loan, he had the bond). If he loses the pledge, therefore, he loses the loan.