1) TO WHAT EXTENT DOES A CREDITOR ACQUIRE THE OBJECT OF COLLATERAL?
QUESTION: The Gemara (43b) cites a Beraisa in which Rebbi Eliezer and Rebbi Akiva disagree about the law in the case of a person who borrowed money and gave the lender a Mashkon which the lender then lost. Rebbi Eliezer maintains that the lender may swear that the Mashkon was lost and then claim his loan. Rebbi Akiva maintains that the borrower may argue that since the money was lent to him only on the basis of the Mashkon, the lender automatically loses his loan when he loses the Mashkon.
The Gemara (44a) explains that in the case of the Beraisa, the Mashkon is worth the full amount of the loan. The basis of the dispute between Rebbi Eliezer and Rebbi Akiva is whether or not the law of Rebbi Yitzchak is correct. Rebbi Yitzchak maintains that when the borrower gives a Mashkon to the lender, the lender acquires the Mashkon. He derives this from the verse that teaches that when the lender gives back the collateral to the borrower, "it shall be considered righteousness to you" (Devarim 24:13). If the lender does not acquire the Mashkon for himself, it should not be considered "righteousness" when he returns it. It must be that the lender indeed acquires the Mashkon (to a certain degree).
How exactly does this work? It is clear that a creditor may not decide to keep an object of collateral in lieu of the loan unless the borrower defaults on the loan. How, then, does he acquire the collateral immediately?
Moreover, Tosfos (DH mi'Kan) states that even according to Rebbi Akiva who agrees with the law of Rebbi Yitzchak, the creditor would not be obligated to pay for the collateral if it becomes damaged due to circumstances beyond his control. Since he receives a form of benefit in return for watching the borrower's object, he is considered a Shomer Sachar. What benefit does he receive? He receives the assurance that if the borrower defaults on the loan, he may collect the debt from the collateral which he is holding. If, however, the creditor actually acquires the Mashkon like a person acquires any other object, then loss due to *any* circumstance, forced or unforced, should be considered as a loss of his own money!
ANSWER: The RI MI'GASH (43b) explains that Rebbi Yitzchak does not mean that the creditor acquires the collateral itself. Rather, he acquires a *right* to the object. What does this mean?
The KOVETZ SHI'URIM (Pesachim #18, DH ub'Ofen) asserts that the Ri mi'Gash means that the lender owns only the *value* of the Mashkon, but not the actual body of the Mashkon. This differs from most other acquisitions, where the owner acquires the object itself. The ownership of the Mashkon depends on the continued existence of the loan. Once the loan expires, the ownership of the Mashkon expires as well.
The Kovetz Shi'urim points out that an example of this principle may be found in TOSFOS in Bava Kama (49b, DH Mashkono). Tosfos writes that if a convert had taken a Mashkon for a loan that he made to an ordinary Jew, and he died with no heirs, the Mashkon automatically returns to the borrower. It is not considered ownerless, and therefore it cannot be acquired by anyone who seizes it, as can other property of a convert who has no heirs.
Tosfos continues that this is true even according to Rebbi Yitzchak, who says that the lender acquires the Mashkon. Rebbi Yitzchak means only that the lender acquires a "Shibud," a lien on the Mashkon (and not that he owns the actual Mashkon). This is clear from the fact that the borrower always has the "right" to pay the debt and recover the Mashkon.
(This also explains why the creditor is considered only a Shomer Sachar on the Mashkon and is not liable if it is destroyed due to circumstances beyond his control. See also KOVETZ SHEMU'OS here.) (D. BLOOM, Y. MONTROSE)
2) WHO MAY SWEAR AND COLLECT
QUESTION: The Mishnah states that all oaths mandated by the Torah are oaths which a person takes in order to exempt himself from paying money that is demanded from him. There is no case of a Shevu'ah d'Oraisa in which a person makes a Shevu'ah in order to extract money from someone else.
However, there are five cases in which a person may extract money from someone else with a Shevu'ah d'Rabanan. In short, they are listed as a "Sachir" (wage-earner), "Nigzal" (victim of theft), "Nechbal" (victim of physical assault), "k'Negdo Chashud Al ha'Shevu'ah" (a case in which the person who is supposed to swear and exempt himself cannot swear because he is suspected of swearing falsely), and "Chenvani Al Pinkaso" (a storekeeper regarding his account book). All of these cases are explained at length in the Mishnah.
There seem, however, to be other cases of situations in which a person may receive money by taking an oath. For example, in the second case of the previous Mishnah (43a), Reuven lent money to Shimon and took a Mashkon (collateral). He subsequently lost the Mashkon. Reuven, the lender, claims that he lent a Sela and the Mashkon was worth a Shekel (half of a Sela). Shimon, the borrower, claims that although he agrees that he borrowed a Sela, the Mashkon was worth three Dinarim (three quarters of a Sela). Accordingly, Shimon admits to only one quarter of a Dinar. The end of the Mishnah states that Reuven swears and collects a Shekel.
Similarly, the Mishnah later (45a) mentions a number of cases in which people receive money if they make a Shevu'ah. The Mishnah states that if a woman admits that she received part of her Kesuvah payment, she receives the remainder only if she makes a Shevu'ah. Similarly, if one witness testifies that she already received her Kesuvah payment, she is entitled to payment only if she makes a Shevu'ah.
Why does the Mishnah mention only five specific cases in which a person may receive money by taking an oath, and not any other cases?
(a) TOSFOS (DH Kol) answers that the Mishnah here lists only cases in which the person whom the oath is being taken against is *incapable* of swearing himself. Tosfos in Bava Metzia (34b, DH Shema) explains each of the five cases at length and shows why the other party cannot take an oath. In contrast, in the other cases, the other party is able to swear, and thus those cases are not mentioned in the Mishnah.
(b) The TOSFOS HA'ROSH gives another reason for why the Mishnah does not mention the case of a woman who makes a Shevu'ah in order to collect her Kesuvah payment. The Mishnah mentions only cases in which there is a special enactment of the Chachamim that a person who makes a claim can receive his money by taking an oath. Without this enactment, he would not have received his money at all.
In contrast, a woman should not have to swear at all in order to collect the remainder of her Kesuvah (or when one witness says that the Kesuvah was already paid). Since she is holding the Kesuvah document, she should be entitled to the money without a Shevu'ah. The Chachamim decreed that she must swear only because it is known that she received partial payment, and there is a concern that she might have received more money than the amount she admits she received.
Similarly, when one witness testifies that she received her Kesuvah payment, his testimony should be immaterial since the Kesuvah that she is holding in her hands is stronger proof than the testimony of one witness.
(The Tosfos ha'Rosh adds that although the Gemara below (end of 45a) says that a Sachir should receive his wages without having to swear, and the only reason why he must swear is to appease the employer, nevertheless it is still understandable why the Mishnah lists this case. Since the employer argues that he paid all of the employee's wages, he is considered "Kofer ha'Kol" -- one who denies everything. One who denies everything is normally exempt from any oath (the Shevu'as Heses for one who denies everything was instituted only later; it did not exist in the times of the Mishnah). Therefore, the Mishnah is needed to teach that the Sachir is believed when he swears.)
The RAMBAN asks that the Tosfos ha'Rosh's answer does not suffice to explain why the fourth case is mentioned in the Mishnah, the case in which the person who is obligated to swear is suspected of falsehood. Therefore, his opponent should not have to take an oath at all in order to receive his money. This is in accordance with Rebbi Aba's statement (47a) that whenever one is obligated to take an oath but is unable to do so, he must pay. Accordingly, this case is comparable to the case of the a woman who wants to collect her Kesuvah. In both cases, the law dictates that the claimant may receive his money without taking an oath at all. Why, then, does the Mishnah mention this case but not the case of a woman who wants to collect her Kesuvah?
The Ramban answers that it may be that the Mishnah lists this case because of the opinion of Rebbi Yosi (47a) who disagrees with Rebbi Aba. Rebbi Yosi maintains that when one cannot take an oath, the two parties split the money in question. Therefore, if not for the decree of the Chachamim that the other party should take the oath and collect the entire amount, the claimant simply would lose half the money he is owed. It therefore is necessary for the Mishnah to state that he is able to take an oath and collect all of the money from the defendant. (D. BLOOM)