Translation:Shulchan Aruch/Choshen Mishpat/72
Paragraph 1- If one lends on collateral, he must be careful not to use the collateral because that is like taking interest. If he lent to a pauper on a hoe or an ax or something similar where it has significant value and depreciates minimally, the lender may rent out the item without permission from the owner and collect the debt via the rental income. There are those that say that the lender may rent the items out to others but not to himself because it appears suspicious. This is only where they did not originally make a condition. If, however, the lender made a condition with the borrower originally, it is permitted. See yoreh deah Simanim 172 and 166 where there are those that say that there is no distinction between religious books and other matters and if the lender learned from the books he lent on he is considered one who illegally laid a hand on a deposit. There are those that disagree because he is performing a mitzvah. See yoreh deah Siman 172.
Paragraph 2- If one lends another on collateral, the lender is considered a paid guardian, whether he lent money or fruit and whether he took collateral at the time of the loan or subsequent to the loan. There is no distinction as to whether the lender accepted the collateral “for its worth” or if he accepted it without specification. Thus, if the collateral was misplaced or stolen, the lender owes its worth to the borrower. If the collateral was worth the same amount as the loan, neither party has a claim against the other. If the loan was more than the value of the collateral, the borrower must pay the difference. There are those that say that if at the time of the loan the lender explicitly said he is accepting the collateral for the entire debt and the collateral is lost, the entire debt has been forfeited, even if he accepted the handle of a sickle for a 1,000 zuz loan. If the collateral was worth more than the debt, the lender must pay the difference to the borrower. If an unavoidable accident occurred, such as where armed thieves took the item or some similar unavoidable accident, the lender must swear as to the accident and the borrower must pay his debt to the possessor of the collateral, down to the last perutah. There are those that say that one who lends on collateral is considered an unpaid guardian with respect to a case where the value of the collateral is worth more than the debt and the lender would not be required to pay the difference to the borrower. Rather, the lender will have lost his money, but nothing more. We would not remove money out of doubt. If the money was misplaced or stolen via negligence, the lender must pay the difference according to all views.
Paragraph 3- If the lender lent on collateral and the lender subsequently deposited the item with the borrower and the item was stolen or misplaced, the lender is liable even though it was misplaced by the borrower because since it was given as a deposit it is still considered in the lender’s possession. Because of this reasoning, if Reuven borrowed money from Shimon with Reuven’s wife’s clothing as collateral and Shimon lent the clothing to Reuven until after yom tov and Reuven died during the yom tov and his wife gave her possessions, including this piece of clothing, to Shimon because she was afraid of the government and Shimon subsequently returned all her possessions to her with the exception of this clothing, Shimon is in the right because since they entered Reuven’s possession as a loan, the clothing is still in Shimon’s possession. If Reuven gave Shimon a collateral to have held as collateral by a gentile and Shimon gave a different collateral to the gentile and kept Reuven’s collateral in his possession, Shimon becomes a guardian on the collateral as if he lent on it.
Paragraph 4- If one lent on collateral and was granted permission to use the item and an unavoidable accident occurred, it is possible that the mere granting of permission makes him a borrower and he would be liable.
Paragraph 5- If one had collateral taken by the public’s trusted officer for his portion of a mugging or robbery and the collateral was stolen, neither the public nor the officer has the status of a paid guardian unless there is a city custom, in which case we would follow the custom.
Paragraph 6-If one lends on collateral and subsequently dies, his son would also become a paid guardian on the collateral.
Paragraph 7- If one lends on collateral and at the time of acceptance of the collateral says that he does not want to accept responsibility, he would not even be considered an unpaid guardian and would even be exempt in a case of negligence.
Paragraph 8- If Reuven borrowed a sword from Shimon that was held as collateral from a gentile and misplaced the sword and Shimon is demanding a significant amount of money which is the amount the gentile is asking from him, Reuven only has to pay the value of a standard sword.
Paragraph 9- If one lends on collateral and the item was misplaced or stolen without any unavoidable accident, in which case the lender would owe the value of the collateral as was explained, and the lender says the loan was a selah and the collateral was worth a shekel and the borrower says the loan was a selah and the and the collateral was a selah, the lender would first swear a guardian-oath that the item is not in his possession and the borrower would then swear a heses oath that the collateral was worth the amount of the loan and the borrower will be exempt from paying.
Paragraph 10- If the lender says the loan was a selah and the collateral was worth a shekel and the borrower says the loan was a selah and the collateral was 3 dinar, the lender would first swear that the item is not in his possession and the borrower would then have to swear how much the item was worth because he has partially confessed, and the borrower would pay the dinar.
Paragraph 11-If the lender says the loan was a selah and the collateral was worth a shekel and the borrower says he doesn’t know the value, the lender will swear that the item was not in his possession and include in his oath the fact that it was worth two dinar and the borrower will pay the rest of debt because the borrower knows with certainty that he owed the lender money, but just doesn’t know if he paid back. If the lender has witnesses that the item was misplaced, the lender would take a shekel without an oath but the borrower would place a general cherem on anyone who takes money that he is not entitled do. The same applies to a case where the borrower granted believability to the lender and the lender would take a shekel without an oath.
Paragraph 12- If the borrower says he was lent a selah and the collateral was worth two in a case where the collateral was misplaced via negligence according to the view that the lender has the status of an unpaid guardian, and the lender says it was only worth a selah and the borrower granted believability with respect to the fact that item was misplaced or there are witnesses that it was misplaced, the lender would take a heses oath and be exempt. If the borrower did not grant believability on the misplacement and there are no witnesses that it was misplaced, the lender would swear that the item is not in his possession and have an oath that it was not worth more than the loan rolled into this oath. If the lender partially confesses in that the borrower says the loan was a selah and the collateral was worth two and the lender says the collateral was only worth five dinar, the lender would pay the dinar he confesses to and will swear that the collateral is not worth more than five dinar and include in his oath the fact that the item is not in his possession assuming he has not been granted believability regarding its loss and he also does not have witnesses that it was lost. If the lender says here is the difference between what the item was worth and what you owed me or if he says that the borrower had something of the lender’s in his possession equal to that amount, the lender would swear a heses oath and be exempt if the lender was granted believability with respect to the misplacement or if he had witnesses that the item was misplaced. If the borrower says he was lent a selah and the collateral was worth two and the lender says he does not know how much it is worth, the lender will swear that the item is not in his possession and include in his oath that he does not know that the item was worth more than the debt and he will be exempt. If there are witnesses that he misplaced it or the borrower granted him believability, the lender would swear a heses oath that he does not know that the item was worth more the debt. If the lender responds that he knows it is worth more than the debt but he doesn’t know by how much, he is obligated to swear but because he cannot swear he must pay the selah. If the lender wants, he may place a general cherem on anyone who makes a false claim. If both parties are claiming from the other in that the borrower says the loan was a selah and the item was worth two and the lender says that it was only worth a shekel, the borrower would take a heses oath that it was not worth less than a selah and the lender would swear that the item is not in his possession and include in his oath that it was not worth more than a selah. If the borrower granted the lender believability with respect to misplacement or if the lender had witnesses, the lender would also only have to swear a heses oath that it was not worth more than a selah.
Paragraph 13- If they both confess to one another, such as where the borrower says he was lent a selah and the collateral was worth a selah and the borrower wants to redeem the collateral and the lender admits that it was worth a selah but claims it was misplaced and the lender has no witnesses and the borrower does not believe him, the lender must swear that the item is not in his possession and each party will have fulfilled his duties. If there were witnesses that it was stolen and that it was worth more than the loan and the borrower demands the difference but the lender claims that it was not stolen or misplaced via his negligence and he is therefore exempt according to the view that the lender is only considered an unpaid guardian, the lender must swear that he has not been negligent, like any other unpaid guardian.
Paragraph 14- If the borrower makes a claim for the amount the collateral is worth more than the amount of the loan and he has witnesses or the lender confesses, but the lender claims that it was misplaced by an unavoidable accident and now demands payment for the debt, the lender must swear that the item is not in his possession, that he did not lay a hand on the item and that it was misplaced by an unavoidable accident and he can then collect his debt from the borrower because the borrower is unaware how the item was misplaced and it is like a case where a borrower says you lent me money but I don’t know if I paid back. If the borrower tells a lender-on-collateral that he paid back such and such amount and the lender says it is true that you paid me but I don’t know how much, the borrower is believed with respect to that which he says because the lender has a mere lien on the collateral and it is as if he is the plaintiff and a person cannot take away from his counterparty on an uncertain claim. If there is a solo witness that contradicts the borrower’s claim, the borrower will swear against the witness and take the value of the collateral that he claims since the lender is uncertain. See later in this Siman in seif 24.
Paragraph 15- In any situation where the lender is required to swear that the collateral is not in his possession, even if he were to say that he will pay what the borrower is claiming and not swear we would not listen to him because we are concerned he set his eyes on the item. If the item was something that all of its kind were the same and something like it is accessible in the market at the price that he wants to pay, the lender can pay without taking an oath. When is this true? Where the oath is only on the lender and there is no oath on the borrower. If, however, it is a situation where the borrower must swear how much it is worth in order to collect or be exempt, then the lender cannot be exempted from swearing that it is not in his possession, even if the lender granted believability to the borrower and even if he wants to pay and it is an item that is accessible in the market because we are concerned that the lender will produce the collateral after the borrower’s oath and it will result in the heavenly name being desecrated.
Paragraph 16- If one lends another with collateral of a ring that contains a stone and the collateral was misplaced and the borrower admits that the ring in the money changer’s possession is identical to his ring, it is obvious that we would follow the experts’ appraisal. If, however, the borrower claims that his ring was worth more and the lender claims that he is certain that it was worth the same as this one, the borrower is considered to have partially confessed and he must give the amount he confessed to and swear on the remainder. If the lender is unsure how much the item was worth and the borrower claims he is sure it is worth more than the money changer’s, the borrower is believed because the lender is obligated to swear an oath that he cannot take. The court must nevertheless thoroughly investigate and intimidate the borrower so that he does not lie by appraising the item for more than its worth.
Paragraph 17- If the collateral was not misplaced and the parties have a dispute regarding the loan amount and the lender says he lent a selah whereas the borrower claims he was only lent a shekel and it is a situation where the lender has the ability to retain possession of the collateral and claim he purchased it, he never received a collateral or that he returned it, the lender is believed to claim he lent the borrower up to the amount of the value of the collateral with an oath while holding a holy item. This only applies where the lender is in possession of an item. If, however, he took possession of money, the lender would take a heses oath and be exempt. Even if the borrower dies prior to the lender’s death, the lender’s orphans can collect from that which is in their possession. Thus, if the collateral was worth a selah, the lender would swear and keep the collateral. If it was only worth a dinar, the lender would take a dinar from the value of the collateral, the borrower would pay back the other dinar that he confessed to and will swear on the two dinar that he denies. If the borrower denies in full and says that the item is not a collateral but a mere deposit and he does not owe the lender anything, the lender will take what it’s worth and the borrower will take a heses oath on the rest and be exempt. Even if the item the lender has possession of is an item that is used to make food or a widow’s garment, we do not say that because he has an obligation to return it he does not have a migu. Rather, since there are no witnesses and he was able to deny, he can claim up to its value. The same applies in a place where they have instituted that one cannot retain an item that comes to him via a loan or deposit or in the case of a teacher who teaches children with books. Although the lender is required to return the item, he has not lost the migu and is believed to claim up to the item’s value in any situation where he has a migu. Even if it is a place that has this regulation, the teacher can hold on to the book to ensure payment for teaching. There are those that say that in any situation where a lender can claim that which is in his possession, he may also simply swear that he does not owe the borrower anything, so long as he is certain that his counterparty owes him money, such as where his counterparty took out a loan or in the case of a deposit where he is certain that his counterparty does not have a claim of unavoidable accident and definitely owes him his deposit or money or any similar case. Nevertheless, we would ideally tell him to prove his words as will be explained below in seif 25 and later at the beginning of Siman 75. This that the lender can claim what is in his possession, is where he claims that his counterparty owes him money. He cannot, however, hold on to the item so that his counterparty will grant him exemptions or something similar from another claim because it has no connection to this matter. Anyone who is able to make a claim on the matter in his possession does not have any rights to the item until he commences the court case and onward, but not from the time of possession. Therefore, if the item went up in value before the court case, it has gone up in the possession of the original owner.
Paragraph 18- If it is a situation where the lender cannot claim he purchased the item, the incident never occurred or that he returned the item, the borrower will swear that he only borrowed a shekel, pay him back and take his collateral. How so? If it was an item that is not generally lent or rented out and there are no witnesses stating how the item came into the lender’s possession, the lender is believed to say he purchased it, even if there are witnesses that currently see the item in his possession. The same would even apply for matters that are generally lent out or borrowed or are not generally lent or rented out but the lender has witnesses that it came into his possession via borrowing and there are no witnesses that currently see the item, and he is able to claim I returned it to you or the incident never occurred so long as there are no witnesses that the borrower handed over item. In a case of items that are generally lent or rented out and there are witnesses that currently see the item in the lender’s possession, however, the lender cannot say he purchased it or he returned it. There are those that say that we don’t require the witnesses see the item at the time he calls the other party to court, but that they previously saw it in his possession and that the lender claimed at the time that he had purchased it or some other claim where he would not have returned the item based on that claim, in which case he does not have a migu that he could have said he returned it because “anan sahadi” that he did not. Similarly, if it is well-known that the item is in the lender’s possession, he cannot claim he purchased it because there is no migu that he could have said he returned it since he is afraid to contradict that which is known, even if there are no witnesses that currently see the item in his possession. Even if he said at the time the witnesses saw the item that the borrower owes him such and such as he is claiming now, he would not be believed. This is only true where the witnesses saw the item before he made the claim in court. If, however, they saw it after the claims and arguments were made in court, the lender would not lose his migu and is believed in his claim that he borrowed or returned because we go after the time the claim was made in court. If there is a solo witness on this, there are those that say that lender is not believed because he is now one that is obligated to swear to contradict the witness and he cannot swear because he concedes to the witness’ testimony and just claims a different claim to exempt himself and he has the status of that which is discussed later in Siman 75 of one who is obligated to swear but is unable to so, who is required to pay. There are those that say that the borrower is believed with an oath. The conclusions of the Mechaber is like the first view as will be explained later in this Siman in seif 23. See later 75:13. Also see above Siman 58 where I discussed whether one is able to claim that that which is in his possession is from a different source and not from this person that gave it to him. This that a person is believed to claim he purchased the item or that he loaned him on it is only where the item is in his possession. If, however, Reuven deposited an item in Shimon’s possession and Levi bring witnesses that testify that it belongs to Levi or Shimon concedes to Levi but claims that Reuven owes him on it, Reuven is not believed to say he purchased it from Levi. If, however, Shimon says that he knows Reuven purchased it from Levi, Shimon would be believed with a migu that he could have said he purchased it from Levi and he would have been believed since there are no witnesses how the item came to Shimon’s possession or no one has seen the item in Shimon’s possession. If Shimon does not claim that Reuven purchased the item from Levi, but that the item was given as collateral, see later Siman 356 that he is obligated to redeem it because of a “commerce regulation.” See more on these laws in Siman 133.
Paragraph 19- According to the Rambam, “items that are intended to be lent or rented out” refers to vessels whose original creation was with the intention to lend or rent out. According to the Rif and Rabeinu Tam, any vessels that people have the practice to not lend or rent out because of its value or because it will get ruined, are considered items that are not lent or rented out. All other vessels are considered those that are lent or rented out, so long as the individual that is in the possession of the item is frequently near the owner of the time and the owner of the item has the practice to lend his vessels to others. All of this is dependent on the particular likes and dislikes of the individual and the local custom, as perceived by the judges based on the particular characteristics of the plaintiff and defendant.
Paragraph 20- If one is in possession of collateral without witnesses where we said that he can claim up to the value of the collateral and the item is only worth half of the value of the loan according to the experts’ appraisal, and the lender says that he will take the item as payment for the debt because it is worth the full amount in his eyes and the borrower denies owing him any money and says he does not owe him and wants to pay him off with the amount that it is worth to the general public, the owner of the vessel is in the right. There are those that say the possessor is in the right. It seems to me that the party attempting to take away the item from the other has the burden of proof. Paragraph 21- The possession of the item by the lender can only be used to claim up to the item’s value where it is an item that cannot walk on its own and stays in the possession of its owner, such as moveable items, a minor slave that cannot walk on his own and an animal that is guarded by a shepherd, because since the item is guarded in the owner’s hands and now this individual is in possession of it, he is believed to claim up to the item’s value. With respect to adult slaves or an animal that is not handed over to the shepherd but goes on its own, however, the possessor is not believed to say he purchased the item or received it as collateral. Rather, when the owner brings witnesses that the item is his, the possessor must return the slave and animal and the owner will swear that he did not sell or give anything as collateral because the taking of possession is not considering a bona-fide taking of possession because the items go here and there on their own but in all places are considered in the owner’s possession. If the possessor had possession for three years with witnesses attesting to that fact, the possessor is believed and will swear a heses oath that he purchased the items or received them as collateral from the original owner.
Paragraph 22- If the lender denies the existence of a collateral and both parties admit to the loan, the lender will swear a heses oath that he did not receive collateral and the borrower will swear a heses oath that the lender has in his possession collateral equal to or more than the value of the loan, and even if the item is worth more than the loan, the lender will be exempt because he already took an oath. If the item was worth less than the loan, the borrower will swear that the collateral was worth such and such amount and will pay the remainder.
Paragraph 23- If Reuven borrowed 10 dinar from Shimon on collateral and there was a solo witness that is aware of the loan and collateral but does not know how much the loan was and Shimon says he lent him 20 dinar and Shimon produced the collateral in front of court or witnesses prior to the dispute between the parties, Reuven is in the right. Since there is a solo witness, Shimon is obligated to swear, but he concedes to the witness’s claim so he cannot swear. Therefore, he must return the collateral and bring proof on the money or Reuven will collect and take a heses oath on the 10 that he denies. If, however, the dispute occurred prior to Shimon producing the collateral in court, Shimon is believed and would swear while holding a holy item and then collect.
Paragraph 24- If Reuven borrowed seven dinar on collateral and then says I first paid you two dinar and then paid you two dinar a second time and then a third payment of a dinar and Shimon says he only remembers the dinar, Reuven is in the right because the actual collateral is his so he is really claiming his collateral and Shimon is responding he doesn’t know and is in doubt and Shimon cannot make an uncertain claim on Reuven’s property. See earlier in this Siman, seif 14.
Paragraph 25- If one takes possession of an item from another and claims that he’s owed the value of the item from a business relationship, we must clarify how he’s owed money because there are many fraudsters and we may be able discover the fraud from the person’s claim. See earlier in this Siman in seif 17 and later in Siman 75.
Paragraph 26- If one has another’s collateral in his possession and the lender is pressuring the borrower to redeem the collateral and the borrower tells the lender that he can have the collateral, the lender would not acquire the collateral because the borrower is just pushing him off.
Paragraph 27-If a collateral decreased in value while in the lender’s possession and the borrower claims he is certain that it decreased due to rotting or because of rodents or smoke and the lender claims that he guarded the item in a place that was appropriately protected from rodents and rot and that he shook it out appropriately and he is not at fault, the lender would take a heses oath that what he says is accurate and would be exempt. If the lender confesses that he did not put the item in an area that is protected from rodents or he did not shake it out appropriately, he must pay the decrease. If there is a dispute between them, where one says it decreased such and such amount and the other says it did not decrease such an amount and the borrower admits that originally the item was only worth the value of the debt, e.g., the borrower says he borrowed 20 and it was worth 20 and now it is worth 10 and the lender says originally it was only worth 15 and he demands the five difference, the borrower would take a heses oath and be exempt, even though he made a partial admission because the collateral is a case of “heilach.” The lender, however, would not take an oath because originally it was only worth the amount of the debt. If, however, it was originally worth more than the debt, such as where the borrower claims that it was worth 30 and he borrowed 20 and now it is only worth 15 and the lender says it was only worth 25 and he only needs to pay back five, the lender would swear that it only decreased 10 and deduct five and the rest will be paid back via the collateral because the lender is believed with an oath up until the value of the collateral. All the more so in a case where even after the depreciation the collateral was worth the amount of the debt and the parties dispute the amount of the decrease or the lender says he does not know how much it decreased, would the lender swear a heses oath and be exempt.
Paragraph 28-If the lender says I lent him a selah and the collateral was worth three dinar so he still has a dinar of mine and the borrower says I sold him the item for three dinar and he has not yet paid me, and the borrower makes a claim on the money, both parties would take a heses oath. The lender would swear that the item in his possession is a collateral and the borrower would swear that he sold it to him. If they want to reverse the oaths on each other they may do so. If there is a dispute as to the reversal of the oaths in that one says I want to reverse and the other says I want to reverse, the matter stands until both of them agree. If they cannot come to an agreement they would both swear.
Paragraph 29-If the lender claims that the collateral was lost without fault and the borrower says he is certain the lender sold the item and took the money, the borrower would take a heses oath and be exempt.
Paragraph 30- If Reuven gave a collateral to Shimon and Shimon went and gave it as a gift or collateral to Levi and an unavoidable loss occurred in the hands of Levi and Reuven is claiming the collateral from Shimon and says it was worth a sela and the loan was only two dinar so he wants the two dinar, and Shimon says it was only worth three dinar and he only owes him a dinar, Shimon has partially confessed and must swear that it was only worth three dinar. Shimon must also swear that it is not in his possession and that an unavoidable accident occurred, which he is unable to do because the accident did not occur in his possession. Levi cannot exempt Shimon by saying with an oath that an accident occurred because Reuven can say Levi is not trustworthy to him. Thus, Shimon is one who is obligated to swear but he cannot swear, so he must pay. The same would apply where the collateral had depreciated and there is a dispute between them how much it depreciated and Shimon admits that it depreciated but is unsure if it was an unavoidable accident or not. Shimon is obligated to swear but cannot swear so he must pay. If Shimon wants to place a cherem on any individual who knows that collateral is not worth the amount claimed, he has permission to do so. If there are witnesses that Levi guarded the collateral appropriately and an unavoidable accident occurred, Shimon would be exempt. If it is Reuven’s practice to deposit items with Levi, Levi will swear that the item is not in his possession and that an unavoidable accident occurred and Shimon will be exempt, even if there are no witnesses as to the accident.
Paragraph 31-If Reuven requests the collateral that he gave to Shimon and Shimon responds that his minor son came and asked for it in your name and he gave it to him and Reuven says he never got it, Shimon is negligent because he gave it to Reuven’s son, even if the son was an adult, because when one takes a collateral or borrows money from another he must return it directly to the owner.
Paragraph 32- If Reuven had money in Shimon’s possession, Levi asked him to lend him the money and they agreed on the loan, Levi gave collateral to Reuven, Reuven sent a letter to Shimon to give the money to Levi, Shimon gave it to him and the collateral was misplaced in the hands of Reuven, the case has the status of a loan on collateral and Reuven is required to watch the collateral. Reuven is not required to watch the item, however, until the money reaches Levi. If the collateral was misplaced prior to the money reaching Levi, Reuven is exempt. Therefore, if Reuven swears that the collateral was stolen before the money reached Levi, Levi must return Reuven’s money. If Reuven is unsure, we would not take away the money from Levi.
Paragraph 33-If Reuven makes a claim against Levi on books that he gave as collateral to Shimon and says that Shimon gave them to Levi to give to him when he gives the money and when Levi produced the books to give to Reuven, Reuven said they had depreciated and lost value in Levi’s possession and he demands that Levi pay the depreciation and Levi says the individual whom I accepted the books from allowed me to study them so long as they were in my possession, since Levi knew that the books belonged to Reuven, even though Shimon gave him permission to study them, he should not have listened to Shimon and is therefore obligated to pay the amount the books depreciated due to its use.
Paragraph 34- If an inheritor produced a document that the deceased had such and such amount of money in so and so’s possession and that so and so had a collateral in the possession of the deceased and the inheritor claims that an unavoidable accident befell the collateral in the possession of the deceased and the inheritor is demanding the money, the defendant would take a heses oath that the deceased did not return the collateral to him and that it was worth the amount of his debt and he will be exempt.
Paragraph 35- If Reuven left a collateral with Shimon and Shimon died and left behind minor children and Reuven comes to demand his collateral from Shimon’s inheritors and says it was given as collateral on 50 and the orphans claim it was given as collateral on 100, Reuven must immediately pay the 50 he admits to and the other 50 should be given to a third party until the orphans become adults and can take the inheritor’s oath that their father did not instruct them etc. and they can then take the 50 from the third party. When is this true? Where the collateral was worth 100. Otherwise, the borrower only has to give the amount of its worth and take a heses oath on the rest. When is this true? Where the collateral is not an item that is generally loaned or rented out. If, however, the collateral is an item that is generally loaned or rented out, the borrower would only have to pay 50, even if the collateral was worth more because he is believed with a migu that the item was loaned to them.
Paragraph 36- If a Jew’s collateral was in the possession of a convert, and the convert dies without any inheritors, and a third party comes and takes possession of the item, we would remove the item from him and return it to its owner because once the convert dies the lien on the item is void.
Paragraph 37-The same rule applies if the convert has a document of collateral on the Jew’s land in his possession and the convert dies and another Jew comes and takes possession of the item, and the third party has not done anything because as soon as the convert died the convert’s lien was void and the document reverts to the owner’s possession.
Paragraph 38- If a gentile lends to a Jew on collateral and dropped the item and a Jew found it, the finder must return the item to the Jew. There are those that say that the same applies to money that a Jew lent to a gentile on collateral and the gentile dropped the money and Jew found it, and the Jew must return the money to the Jew. It seems to me that the money belongs to the finder because money is meant to be spent and it already has completely left the possession of the lender.
Paragraph 39- If a convert’s collateral was in the possession of a Jew and the convert dies and a third party comes and takes possession of the collateral, the lender acquires the amount that corresponds to the amount the convert owed him and the third party acquires the rest. When is this true? Where the collateral was in an unguarded courtyard and the lender was not in his courtyard at the time of the convert’s death. If, however, the lender was in his courtyard or if the collateral was in a guarded courtyard, even if the lender was not there, the courtyard would acquire the entire collateral for the lender. If Reuven had Shimon’s collaterals in his possession and Shimon died, and his inheritors are claiming the collaterals and Reuven says I am retaining these collaterals because my partner, Levi, told me that Shimon owed him money from the partnership and Levi wants to swear on these collaterals, Levi’s words are meaningless because the items are not in his possession.
Paragraph 40-If a gentile’s collateral was in Reuven’s possession and Reuven tells the gentile to give him his money and the gentile says to give the item as collateral to another Jew, and Reuven went and gave it as collateral to Shimon, and Shimon gave him the money that the gentile owed him, and the gentile died and the collateral was worth twice the amount of the debt, Shimon acquires the entire collateral. If a gentile’s collateral was in a Jew’s possession and the gentile says to give the collateral to another Jew and such other Jew dies, the first Jew would acquire the collateral in his possession and he does not have to give anything to anyone else because the second Jew did not pull the item into his possession. If the gentile owed money to another Jew, see later at the beginning of Siman 86.
Paragraph 41- If a gentile’s collateral was in Reuven’s possession and Reuven deposited it in Shimon’s possession and the gentile dies, it is unclear whether Shimon would acquire the amount of the collateral that is worth more than the debt.
Paragraph 42- If one takes possession of another’s land and eats its fruits and claims that he took possession as collateral and that he had a document of 100 dinar that he loaned him and he has now misplaced the document, and the other party claims that the loan was only 50 dinar and the possessor did not take possession for the years of chazaka, the borrower is believed and would swear in accordance with the rules of a partial confession and would take his land. If, however, the possessor had possession for three years, the lender is believed with a heses oath and would take the 100 that he is claiming from the fruits of the land.
Paragraph 43- If one loaned his friend on collateral and the borrower pays back and says give me my collateral and the lender says leave now and return tomorrow and I will give it back to you and the collateral is then stolen and was stolen before the time that was set to come back for it, the lender is obligated. If it was stolen after the time that was set up to get it, the lender would be exempt. Therefore, if the borrower has witnesses that he came at the time that was set and the lender did not give it to him, the lender would be liable. If there are no witnesses, the lender would swear that he did not come at the set time and he would be exempt. This is only according the opinion that one who lends on collateral is a paid guardian. According the opinion that was explained in the beginning of this Siman that he is an unpaid guardian, however, the lender would only be liable in the case of negligence.
Paragraph 44- If Reuven had a collateral in the possession of a gentile that loaned him on interest, and Shimon needs money and asks Reuven to give him permission to borrow on the collateral and he does so, and the collateral was burned in the possession of the gentile, Shimon is exempt from paying the value of the collateral to Reuven.
Paragraph 45- If the collateral was in existence and is not worth the amount of the money, the lender can force him to pay back the debt.