BAVA METZIA 112-116 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to Rav Weiner -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.

1) ENTERING THE HOUSE OF A BORROWER'S HEIRS

OPINIONS: The Gemara derives from the verse, "You shall not enter his house to forcefully take a collateral" (Devarim 24:10), that although a lender is prohibited from entering the borrower's house, he is permitted to enter the house of the borrower's guarantor ("Arev"). Is he also permitted to enter the house of the borrower's heirs to collect a Mashkon?

(a) The MINCHAS CHINUCH (end of #585) suggests that just as the Gemara infers from the verse that a lender may enter the guarantor's house, one can also infer that the lender is allowed to enter the house of the borrower's heirs in order to take collateral for their father's debt. The Minchas Chinuch enumerates various other situations in which the mobile objects (Metaltelin) that the heirs inherit are Meshubad to the lender (even though the normal rule is that the Metaltelin of heirs are not Meshubad to their father's debts). One example is the Takanas ha'Ge'onim (as cited in Shulchan Aruch CM 107:1) which states that a creditor may collect from the Metaltelin of the heirs. In such a case, the Minchas Chinuch asserts, one may forcibly take an object as collateral from the heirs since the Torah forbids the lender only from entering the house of the borrower himself.

(b) The Gemara (beginning of 115a) says that after a lender takes an object of collateral from the borrower, the lender gains a measure of ownership over the object. As a result, even when he returns it to the borrower each day as the Torah requires him to do, it still remains the possession of the lender (and it is merely a Pikadon in the borrower's possession). Thus, even when the borrower dies, the object of collateral does not become Metaltelin that belongs to the heirs ("Metaltelin d'Yasmi") which may not be collected, but rather it has the status of a Pikadon of the lender which he may collect from the heirs.

The RAMACH (cited by the Shitah Mekubetzes, end of 114b) writes that in such a case not only may the lender collect the object from the heirs, but he may even forcibly enter their house. However, he does not use the reasoning of the Minchas Chinuch (who derives this Halachah from the verse the Gemara quotes) to explain why the lender may enter their house. Rather, the Ramach reasons that since the collateral already belongs to the lender, he merely is taking his own object. This implies that the Ramach does not agree with the Minchas Chinuch, and, according to the Ramach, a lender who does not already have collateral would be prohibited from entering the heirs' house. (Y. MARCUS)

2) TRANSFORMING A DIFFERENT DEBT INTO A FORMAL LOAN

OPINIONS: The Gemara says that when a person owes money to someone who worked for him or rented something to him, the creditor may enter his home to take an object of collateral. The Torah prohibits entering a debtor's home to take collateral only for an actual Milveh, a loan, but not to take collateral for moneys owed for other reasons. The Gemara adds, however, that if the parties involved turn the debt into a loan ("Zakfan Alav b'Milveh"), then one is prohibited from entering the debtor's home, because the verse says, "When you lend to your fellow man any type of loan (Mashas Me'umah), you shall not enter his house to forcefully take collateral" (Devarim 24:10).

There are numerous mentions in the Gemara of the concept of "Zakfan Alav b'Milveh," the transformation of a different type of debt (such as a credit debt due to a purchase) into a proper loan. There are many significant Halachic ramifications of such a transformation, such as the one mentioned in the Gemara here. What exactly constitutes an act of "Zakfan Alav b'Milveh"?

(a) The ROSH in Gitin (4:17) explains that "Zakfan" means that the seller (creditor) decides to fix a definite time as the deadline by which the buyer (debtor) must pay him. When a debt has a set date for payment, that makes it a proper loan as opposed to another type of debt.

(b) The MORDECHAI in Shevuos (8a, first column) writes that when the seller writes in his book of debts the exact amount that the buyer owes him, the debt becomes an official loan and takes on all the laws of a Milveh.

Both of these opinions are cited by the REMA (CM 67:14). (Y. MARCUS)

3) THE DEFINITION OF AN "ALMANAH"

OPINIONS: The Torah prohibits a lender from taking the garment of a widow as collateral for a loan (Devarim 24:17). The Tana of the Mishnah, as well as Rebbi Yehudah in the Beraisa, prohibits taking a widow's garment regardless of whether she is poor or rich. Rebbi Shimon in the Beraisa permits a lender to take the garment of a rich widow, since he will not need to return the garment to her each day and thus will not arouse suspicion. The Gemara explains that Rebbi Shimon's ruling is in accordance with his general view that the reasons of Mitzvos may be expounded. Since the reason for the prohibition does not apply to a rich widow, Rebbi Shimon permits it.

Who qualifies as a "widow" with regard to this Halachah? There are three opinions in the Poskim. (See TOSFOS REBBI AKIVA EIGER to the Mishnayos.)

(a) The S'MA (CM 97:22) maintains that the Torah prohibits taking a garment as a Mashkon both from a widow and from a divorced woman, because neither one has a husband to provide her with moral and financial support. A single woman who was never married and who is still supported by her father is not included in this Isur, and a lender may enter her home to take a Mashkon.

(b) The SHACH (CM 97:1) argues and asserts that the Isur applies exclusively to a widow, a woman whose husband died. The Torah is especially concerned for a widow and not for any other single woman because a widow's heart is broken due to her husband's death.

(c) The TAZ offers a third opinion and suggests that the Isur applies to taking a Mashkon from any single woman. Most women would not need to borrow money, since their husbands or fathers work and support them. The Torah uses a widow as a paradigm of a woman who is on her own and therefore needs to engage in business and to borrow money. The Isur, however, applies to any woman who is on her own. (Y. MARCUS)

4) TAKING A "MASHKON" FROM AN "ALMANAH"

OPINIONS: The Torah prohibits a lender from taking the garment of a widow as collateral for a loan (Devarim 24:17). The Tana of the Mishnah and Rebbi Yehudah in the Beraisa prohibit taking a widow's garment regardless of whether she is poor or rich. Rebbi Shimon in the Beraisa permits a lender to take the garment of a rich widow, since he will not need to return the garment to her each day and thus will not arouse suspicion. The Gemara explains that Rebbi Shimon's ruling is in accordance with his general view that the reasons of Mitzvos may be expounded. Since the reason for the prohibition does not apply to a rich widow, Rebbi Shimon permits it.

Does this Isur apply only to the widow's garment, as is written in the verse, or does it prohibit taking any of a widow's possessions as collateral?

(a) The SHILTEI GIBORIM (#2) writes that the Torah prohibits taking only a widow's garment or her sheets (which she needs to wear or to sleep on). One is permitted to take any other object from her as collateral.

(b) REBBI AKIVA EIGER and the RASHASH infer from the fact that none of the Poskim (except the Shiltei Giborim) differentiate between a garment and any other object that one is prohibited from taking any object from a widow as collateral. The Rashash adds that mid'Oraisa one is prohibited only from taking a garment, while taking any other object is prohibited mid'Rabanan.

(c) The SEFER HA'CHINUCH (#591) writes that one who takes any object from a widow as collateral transgresses an Isur d'Oraisa. The MINCHAS CHINUCH there (as cited by the DEVAR YAKOV) writes that the Chachamim had a tradition that the Torah prohibits taking any object from a widow as collateral.

The Minchas Chinuch suggests that perhaps this question depends on whether the Halachah follows the view of Rebbi Yehudah or that of Rebbi Shimon. According to Rebbi Shimon, the Torah prohibits one from taking a Mashkon only from a poor widow, because he will have to return the object to her each day and people will come to suspect them of wrongdoing. It should be prohibited, then, only to take her garment (or sheets), which need to be returned to her each day for her to use. He should be permitted to take other objects, which she does not need each day, since he will not need to return them each day. Rebbi Yehudah, however, maintains that the Torah prohibits taking a Mashkon from a widow even when she is rich and the lender does not have to return the garment to her each day. Accordingly, Rebbi Yehudah would prohibit taking any other object from her as well.

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