IS GIVING A SECURITY CONSIDERED HEILACH? [Modeh b'Miktzas: Heilach: security]
(Mishnah): If Reuven lent to Shimon four Dinarim and took a security and lost it (Reuven is liable for it), if he claims that it was worth two (Dinarim, so Shimon still owes two) and Shimon claims that it was worth three, he must swear. (Shimon admits to a Dinar and denies a Dinar.)
Bava Metzia 4b (Beraisa - R. Shimon ben Elazar): A loan document says 'Dinarim', without specifying an amount. The lender says that he lent five and the borrower admits to three. Since he admitted to part of the claim, he swears;
R. Akiva says, he is like a Meshiv Aveidah (one who returns a lost object, i.e. he could have easily said two), and he is exempt.
Version #1 - Question: R. Shimon ben Elazar obligates an oath when he admits to three. Had he admitted to only two, he would be exempt. This is like Heilach, therefore he is exempt!
Answer: Really, R. Shimon exempts him when he admits to two, even though Heilach is liable. When he admits to two, the document supports him, therefore he is exempt. Alternatively, when he admits to two, there is a lien on his land to pay the entire admission. We do not swear due to denial or admission of debts that have a lien on land.
Version #2 - Question: R. Akiva exempts him only because he is like a Meshiv Aveidah. Had he only admitted to two, he would be liable, even though (there is a lien on land to pay two, and) it is like Heilach!
Answer: Even if he admitted to two, R. Akiva exempts. The Beraisa discusses three to teach the argument about three. R. Shimon obligates because he partially admits, and R. Akiva exempts like a Meshiv Aveidah.
Support: If R. Akiva obligated an oath regarding two, why would he exempt him when he says three? He will scheme to say three to avoid swearing!
Question: Since R. Akiva exempts regarding two, even though he is not a Meshiv Aveidah, the exemption must be due to Heilach!
Answer: When he admits to two he is exempt because the document supports him. Alternatively, when he admits to two there is a lien on his land to pay this, and we do not swear due to such admissions.
Kidushin 8b (Rav Nachman): If one said 'be Mekudeshes to me for a Maneh', and he gave her a security, she is not Mekudeshes. Since the Maneh is not here, the security takes no effect.
Question (Rava - Beraisa): If a man was Mekadesh a woman with a security, she is Mekudeshes.
Answer: That refers to a security for the loan of a third party;
(R. Yitzchak): "It will be Tzedakah (to return the security in its proper time)" shows that a lender acquires a security. If he did not acquire it, it would not be called Tzedakah to return it!
Rav Huna's children agreed to buy a slave for Perutos (small copper coins). They did not have Perutos with them. They left a piece of precious metal for a security. The value of the slave increased (and the seller wanted to retract).
R. Ami: The coins were never given, so the security has no effect.
Rambam (Hilchos To'en 3:15): If Reuven claimed 100 Zuz and a Kli from Shimon, and Shimon said 'I owe you only a Kli. Here it is', and Reuven says 'this is not my Kli', and Shimon admitted that he switched his Kli for another, he must swear mid'Oraisa.
Kesef Mishneh: The Tur said that perhaps the Rambam holds that a security is not considered Heilach. The Rambam says so explicitly (4:6)!
Rambam (4:6): If Reuven claimed a loan of 100 Zuz with a security, and Shimon, and Shimon said 'I owe you only 50', if the security is worth 50 or less, he must pay swear and pays the 50 he admits. If the security is worth 80, Reuven swears that he is owed no less than 80 and receives 80 from the security. Shimon swears mid'Oraisa about the 20 he denied.
Rebuttal (Ra'avad): If it is worth 50, he does not swear, for it is Heilach. Also when it is worth 80, it is Heilach.
Magid Mishneh: The Rambam's law follows from Shevuos 43a. The Ra'avad holds that admission of the amount of the security is Heilach. The Rebbeyim of the Rambam disagree. R. Yosef ha'Levi explicitly said that in the name of the Rif that a security is not Heilach.
Ran (17b DH ul'Inyan): Ba'al ha'Itur says that if one gave a security, this is Heilach. R. Yosef ha'Levi proves unlike this from Kidushin 8a. If one said that he is Mekadesh with money, and gave a security for it, since there is no money, the security is invalid (she is not Mekudeshes). Bnei R. Chiya bought a slave for coins, and gave a security. R. Ami ruled that since there is no money, the security is invalid (and so is the sale). Likewise, the security here is invalid, and it is not Heilach. Others reject this proof. There, the security is invalid because he never owed. Here, he owed, so the security takes effect, and the lender acquires it! I say that the proof was valid. A lender acquires a security, even at the time of the loan, through the money he lent. R. Yitzchak expounded that a lender acquires a security given not at the time of the loan because it is for collection; this is a Gezeras ha'Kasuv. If a security is given for a purchase, with what does he acquire it? R. Yosef ha'Levi proved from Kidushin that a security is not acquired through Meshichah. Likewise, it is not considered Heilach.
Shulchan Aruch (CM 87:1): Even if he gave a security for what he admits to, it is not Heilach.
Beis Yosef (DH v'Chosav ha'Ran): The Rivash (396) says that only proper payment is Heilach. A security requires assessment of Beis Din and must be collected, and sold. If he authorized the lender to sell the security and be paid from it without Beis Din or anyone else, perhaps this is Heilach.
SMA (9): Since the lender will not keep it, for later the borrower will redeem it, this is no better than admission.This is why the Rivash says that it is Heilach if he permits the lender to sell it.
Bedek ha'Bayis: The Ritva (Bava Metzi'a 4a DH Ela) says that if the value of the security is known, and he gives it immediately for payment, and we know that the borrower has no money, it is Heilach.
Ketzos ha'Choshen (3): The Ritva (ibid) says that even if a security is given for absolute payment it is not Heilach, for one can pay the lender Bal Korcho (against his will) only with money. Even if the borrower has no money and can pay the lender Bal Korcho with Metaltelim, since it needs to be evaluated, it is not Heilach. It seems that even if it is given for absolute payment, we know that the borrower has no money and the security's value is known, it is not Heilach. The Ritva meant 'even if the borrower has no money, and he can pay with Metaltelim Bal Korcho (since it needs to be evaluated, it is not Heilach).' We hold that even in this case, the lender can say 'I will wait until you get money.' The Shach connotes that it is Heilach; I disagree.
Note: The Ritva says 'a security is Heilach only if its value is known, it is given for absolute payment, and it is known that the borrower has no money.' He holds that a borrower without money can force the lender to accept Metaltelim in place of money. The Ketzos says that the Halachah is unlike the Ritva regarding paying Bal Korcho, therefore, it is not Heilach.
Rema: Some say that if he gave a security it is Heilach, for even a document is Heilach.
SMA (10): It is clear that a document is Heilach, for in Bava Metzi'a (4b) all hold that admission to two is not Modeh b'Miktzas, since the document gives him a lien against the property for two. We learn from here that if Reuven claimed 100, and Shimon immediately gave to him a document obligating himself to pay 50, this is Heilach. The Tur and Rema teach that a document is Heilach even in this case. Ir Shushan says that a document is not Heilach, for it is difficult to collect. This is wrong. The first opinion holds that giving a security or document now (in Beis Din) is different, for the lender did not rely on it from the beginning.
Shach (6): A document is Heilach when it has a lien on land. Since we learn about a security from a document, here we must discuss a document without a lien, e.g. the borrower has no land, or he cannot seize from Meshubadim (88:28).
Shach (5): The Ritva (Bava Metzi'a 4b DH Sela'in) says that a document is Heilach because one cannot deny it, and it gives the lender a lien. When one gives a security, granted, the lender will not lose (he is guaranteed to collect its value), but the borrower could have denied the claim, therefore it is not Heilach. In such a case, it is Heilach only if he gives money. The Ra'avad argues with the Rambam only because the Rambam holds that it is not Heilach even if the security was given at the time of the loan. Also the Ran, Ritva and Nimukei Yosef hold that then it is Heilach. However, I wrote (72:118) the Halachah follows the Rambam. I said (88:51) that if the borrower gave a Kesav Yad (a document in his own handwriting) with Ne'emanos (the lender is trusted to say that he was not paid) it is Heilach. That is because the borrower cannot deny the money itself. Therefore, he does not admit at all to the claim (i.e. the rest). One who gave a security can deny the loan. The lender can collect from the security, but it is not Heilach. Also, if the security will be lost b'Ones, if the borrower denies owing, the lender will lose. Also, he must swear (holding a Chefetz) to collect from the security. If he took a security not at the time of the loan, since the lender acquires the security, all agree that it is Heilach.