שבועות 44:1 — Soncino English Talmud

what is the reason of R. Eliezer? But [you must therefore say,] it is not equal to the amount of the loan, and they disagree about Samuel's ruling. — No! if it is not equal to the amount of the loan, neither of them would agree with Samuel; but here, it is equal to the amount of the loan; and they disagree about R. Isaac's ruling; for R. Isaac said: Whence do we know that the creditor ‘possesses’ the pledge? Because it is said: And it shall be righteousness unto thee. [Now,] if he does not ‘possess’ the pledge, wherein is his righteousness [in returning it]? Hence, the creditor ‘possesses’ the pledge. Shall we say [then] that [these] Tannaim disagree about R. Isaac's ruling? — How can you think so? You may say that R. Isaac stated [his law] if he took the pledge not at the time of his loan; but if he took the pledge at the time of the loan, did he say [this]? — But [answer thus]: If he took the pledge not at the time of the loan, all agree with R. Isaac; but here [we deal with a case where] he took the pledge at the time of his loan, and they disagree on [the same principle which governs] the guardian of a lost object; for it has been stated: The guardian of a lost object: Rabbah says he is like an unpaid bailee,^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ

^ᵃnote:That the lender merely takes an oath that he has lost it, and still claims his loan? If the pledge equals the amount of the loan, it was obviously intended as full security; and if he loses it, he should lose his loan.
^ᵇnote:R. Eliezer does not agree with Samuel, for since the pledge is not worth as much as the loan, the lender accepts it simply as a reminder of the loan and not as full security; and he is regarded as an unpaid guardian of the pledge; therefore he takes the required oaths. And R. Akiba agrees with Samuel that, since the lender made no stipulation, he accepted the pledge as full security, and therefore if he loses it, he loses his money. Hence, Tannaim disagree on this point; then why does Samuel state his ruling as if he originated it? Let him say he agrees with R. Akiba
^ᶜnote:Both R. Eliezer and R. Akiba holding that, in such a case, the lender did not accept it as security, but merely as a reminder, and therefore if he loses it, he does not lose his money.
^ᵈnote:I.e., becomes legally responsible for it, and if anything happens to it (even though it is not due to his negligence) he must pay for it; v. B.M. 82a, Rashi.
^ᵉnote:Deut. XXIV, 13; when the lender returns the pledge to the borrower it is accounted an act of righteousness.
^ᶠnote:R. Eliezer does not agree with R. Isaac, but holds that the lender is accounted an unpaid guardian of the pledge, and therefore is not responsible for its loss; and R. Akiba agrees with R. Isaac, holding that he is responsible, and since it is equal to the amount of the loan, he loses the whole loan, if he loses the pledge.
^ᵍnote:Then why does R. Isaac state his ruling as if he originated it? Let him say he agrees with R. Akiba!
^ʰnote:But later; and an officer of the Court was sent to obtain the pledge from the borrower; v. B.M. 113a. Since he took the pledge later, he obviously wanted it as a source for the repayment, and is therefore fully responsible for it: he ‘possesses’ it.
^ⁱnote:He may thus agree with R. Eliezer that he is only an unpaid guardian, and is not responsible for its loss.
^ʲnote:The case in which R. Eliezer and R. Akiba disagree.
^ᵏnote:One who finds a lost object and guards it till its rightful owner is found.
^ˡnote:For he does not receive payment for guarding it, and is not responsible for its loss or theft.