QUESTION: The Mishnah discusses a case in which a lender takes a Mashkon (collateral) from the borrower for a loan, and then he loses the object. The lender and borrower disagree about how much the lost Mashkon was worth. The Mishnah states that an oath must be taken to verify the true value of the Mashkon. The Mishnah concludes, "Who takes the oath? The person who currently has the Pikadon (deposit)." The Mishnah continues and says that the reason why the lender must make this Shevu'ah (even though a Shevu'ah usually is made by the one who seeks to exempt himself from paying) is the concern that if the borrower were to make the Shevu'ah, the lender might afterwards produce the Pikadon.

Rav Ashi (43b) explains that the Mishnah maintains that both the lender and the borrower must make a Shevu'ah. When it asks, "Who takes the oath," it means to ask who swears first. The lender swears that he no longer has the collateral, and the borrower swears how much the lost Mashkon was worth.

Why does the end of the Mishnah use the term "Pikadon" -- "deposit," when the rest of the Mishnah calls it a "Mashkon" -- "collateral"?

(a) The TOSFOS YOM TOV (DH Mi) answers that the reason why the Mishnah concludes with the term "Pikadon" is to teach that the same law applies to a Pikadon. If a person who was entrusted with a Pikadon claims that he lost it and is exempt from liability (he was a Shomer Chinam who is exempt from liability in cases of loss or theft), he must swear that the Pikadon indeed is no longer in his possession.

The Tosfos Yom Tov's answer that the Shomer of a Pikadon must swear that the object is no longer in his possession is consistent with Rav Ashi's statement that the lender must swear that the Mashkon is not in his possession (and not how much it was worth).

(However, the Tosfos Yom Tov questions his own explanation. In Bava Metzia (34b), Rav Huna says that a Shomer who claims that he lost the Pikadon must swear that it is not his possession, even if he pays the value of the Pikadon, because of the suspicion that he may have taken a liking to the object and wants to buy it. If the Mishnah here indeed means that a Shomer always must make such an Shevu'ah on a Pikadon that he lost, then why does Rav Huna present this as his own ruling? It is a law stated explicitly in the Mishnah! The Tosfos Yom Tov leaves this question unanswered.)

(b) REBBI AKIVA EIGER quotes the LIKUTEI MAHARIL who answers that the Mishnah is teaching that the word "Mashkon" is synonymous with the word "Pikadon." Accordingly, one who swore never to accept a Pikadon is prohibited from taking a Mashkon for a loan as well. Indeed, this is the ruling of the REMA (YD 217:48).

(c) Rebbi Akiva Eiger adds that it appears to him that there is a different reason for why the Mishnah uses the term "Pikadon." The Mishnah's intention is to teach that the Mashkon which the borrower gives to the lender is actually no more than a Pikadon. If the Mishnah would refer to the collateral only with the word "Mashkon," one would assume that when a borrower gives a Mashkon to a lender, he implies that the repayment of the loan is contingent upon the return of his collateral. By referring to the collateral with the word "Pikadon," the Mishnah teaches that although the lender owes to the borrower the value of the collateral object, the repayment of the loan itself is not dependent on the return of the Mashkon/Pikadon; the borrower must repay the loan regardless of whether he receives his object in return. The RAN (24b of the pages of the Rif) indeed writes that if the Mashkon is not worth the full value of the loan, the borrower still must return the remainder of the loan even if it is likely that the Mashkon is still in the possession of the lender.

This opinion is in contrast to the view of Shmuel (43b; see following Insight), who ruled that if the lender does not return the collateral, the borrower does not have to repay the loan. In a case in which a person borrowed a thousand Zuz, gave the handle of his scythe as a Mashkon, and then the lender lost the handle, Shmuel ruled that the lender may not claim his thousand Zuz. The Ran writes that the Halachah does not follow the view of Shmuel, and thus in practice there is no connection between the return of the Mashkon and the repayment of the loan. (D. BLOOM, Y. MONTROSE)

OPINIONS: In a case in which a person borrowed a thousand Zuz, gave the handle of his scythe as a Mashkon, and then the lender lost the handle, Shmuel ruled that the lender has lost his right to claim back the thousand Zuz. The Gemara asks that Shmuel's position seems to contradict the Mishnah. The Mishnah (43a) states that if the lender claims that the debt was one Sela and the lost Mashkon was worth one Shekel (half of a Sela), and the borrower argues that the lost Mashkon was worth three Dinarim (three quarters of a Sela), an oath must be taken. The Mishnah clearly implies that the borrower owes money despite the fact that the Mashkon was lost; the only question is how much money he owes.

The Rishonim disagree about the text of the Gemara's answer to this question.

(a) TOSFOS (DH Masnisin) clearly has the Girsa that appears in our text of the Gemara. According to this Girsa, the Gemara answers that the Mishnah is discussing a case in which the lender explicitly stated that he accepts responsibility for the value of the Mashkon only if it is lost. In contrast, Shmuel refers to a case in which the lender made no such condition.

(b) Tosfos quotes RABEINU CHANANEL whose has a different Girsa in the Gemara's answer. According to his Girsa, the Mishnah refers to a case in which no condition was specified, and therefore the lender loses the value of the Mashkon only if it is lost. In contrast, Shmuel refers to a case in which the lender explicitly stated that although the Mashkon is not worth the full value of the loan, he accepts upon himself to forfeit the entire loan if the Mashkon is lost.

Tosfos points out that this is also the Girsa of Rabeinu Tam, and he adds that it is also more logical. Without any specific stipulation, why should the lender lose the entire loan just because he lost the collateral?

However, Tosfos questions the explanation of Rabeinu Chananel and Rabeinu Tam from the Beraisa cited later in the Gemara. The Beraisa discusses a case in which a person 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) asks that the Beraisa seems to refer to a case in which the Mashkon was worth less than the loan. Rebbi Akiva agrees with Shmuel's law while Rebbi Eliezer disagrees with it. Tosfos asks that if Shmuel refers to a case in which the lender explicitly said that he will forfeit the entire loan if he loses the Mashkon, why does the Gemara say that Rebbi Eliezer argues that the lender does not have to forfeit the loan?

Tosfos answers that perhaps Rebbi Eliezer maintains that the lender's stipulation is an "Asmachta b'Alma"; his statement was an exaggeration and not intended to be binding (see Bava Metzia 66a). Accordingly, even if the lender said that he will forfeit the entire loan if he loses the Mashkon, he said this only in order to reassure the borrower, but he had no intention to forfeit his loan. Therefore, if he loses the Mashkon, he does not lose the value of the Mashkon. He may take an oath and retrieve the full value of the loan.

However, if this is correct, what does Rebbi Akiva mean when he says that if the lender loses the Mashkon, he forfeits the entire loan, even though the Mashkon was worth less than the loan?

Tosfos answers that Rebbi Akiva maintains that the lender was serious about his condition. The TOSFOS HA'ROSH adds that there is strong reason to believe that he was serious. After all, it was the lender who did a favor to the borrower by granting him the loan. He did not have to make any condition that will work against him if he did not want to do so (he could simply deny lending money to the potential borrower who insists that he make such a condition). Since he made the condition anyway, he must have meant that it should be binding.

The RITVA adds insight into why a lender would accept such a condition upon himself. The Mishnah in Bava Metzia (94a) teaches that a Shomer Chinam (whom the Torah exempts from liability in all cases except negligence) may make a condition to accept upon himself the degree of responsibility of a Sho'el (whom the Torah holds responsible in all cases, even when unavoidable circumstances cause the object to be lost or damaged). (See GILYON HA'SHAS and MESORES HA'SHAS in Bava Metzia there.)

The Gemara in Bava Metzia (94a) explains that the reason why a Shomer Chinam would be willing to raise the degree of his responsibility to that of a Sho'el is that he will thereby gain a reputation of being a reliable person. This reasoning may apply to the case of the Gemara here as well. Perhaps the lender agrees to accept additional liability for the Mashkon in order to gain a reputation as an extremely responsible person. Therefore, he sincerely accepts upon himself that even if he loses a small Mashkon, he will forfeit the entire loan. (D. BLOOM)