Siman 72

One who lends to his fellow on a mashkon, the lender must be careful not to use the mashkon, for it is like ribbit and it is gazel. If he used it, and the mashkon is made to be rented out for a fee, we do not suspect him of being a gazlan, and he is obligated to pay the borrower rent for this. Even if he says his intention was to commit gazel, he is not believed [it appears to me]. If it is not made to be rented out, he does not need to pay him anything, and regarding the transgression he committed, he shall bear his iniquity. According to the Rambam, if the lender wishes to fulfill his duty toward Heaven, he should pay him rent [Shach]. This applies specifically where he did not stipulate with the borrower at the time of the loan; but if he stipulated with him that he would use it and deduct a small amount from his debt in exchange for his use, according to what they agreed upon between them, it is permitted to use it. However, without a deduction from the debt, it is forbidden even with the will of the borrower, because this is ribbit. There is no distinction in this between sefarim and other objects; we do not say that since the study of Torah is the greatest mitzvah, he is permitted to study even from sefarim that were pawned. If he studied from the sefarim or used another mashkon in a forbidden manner, besides the transgression he committed, he is called one who "sent forth a hand" (sholeach yad) against a deposit, and if the mashkon was lost to him through an ones, he is liable for its responsibility. If there are witnesses that he used them, he becomes disqualified from taking an oath. If the borrower says that they decreased in value, the borrower shall swear how much they decreased and deduct it from his debt, or the beit din shall appraise how much they decreased. Some say that regarding sefarim, since he thinks he is performing a mitzvah, he is not disqualified from an oath, as I wrote in siman 34 regarding testimony, that one is not disqualified in such a case. It is good that he pay the borrower something for his use even if they did not stipulate at the beginning. It is forbidden to take a sefer from his fellow without his knowledge, for he is like a gazlan, except for a tallit and tefillin occasionally, which it is permitted to take without the knowledge of the owners, for certainly a person is pleased to have such a light mitzvah performed with his property, as written in Orach Chaim siman 14. Similarly now, when sefarim are printed and common, it appears to me that one may take it to study in it for a short time without his knowledge, and it is no worse than a tallit and tefillin, unless he knows that the owners are particular about this. To borrow a sefer from the wife of the owner appears to be permitted, for certainly a man is not particular with his wife regarding this, just like the borrowing of any household vessel.

If one lent to a poor person on the security of a hoe or an ax and the like, whose rental value is high relative to its depreciation, he may rent it out without the knowledge of the borrower and deduct the rental fees from his debt, for presumably it is pleasing to the borrower and it is like returning a lost object. Specifically, he may rent it to others but not to himself, so that they do not suspect him of using it without deduction. If he stipulated with him at the outset, it is permitted even to himself and with deduction, for whoever knows that it is a mashkon in his hand presumably also knows that he stipulated with him.

One who lends to his fellow upon a mashkon, whether he lent him money or he lent him produce, whether he took the mashkon from him at the time of the loan or whether he took it as security after the loan by the authority of a beit din as has been explained in siman 97, the lender is obligated to guard the mashkon. Since it is in his hand, he is responsible to guard it, for who will guard it if not him? His legal status is that of a shomer sachar, such that if it is stolen or lost, he is obligated to pay, but in a case of ones when it is lost, he is exempt according to the law of a shomer sachar. And so too, if the mashkon was for credit on merchandise or for wages, his status is that of a shomer sachar. Therefore, if the mashkon was lost or stolen, and certainly if it was lost through his negligence, the lender is liable. If the mashkon was worth the amount of the debt, neither party owes his fellow anything. If the debt is more than the mashkon, the borrower pays the remainder. There is no difference whether he specified at the time he received the mashkon that he only accepts it according to its value, or whether he accepted it without specification; we do not say that since he accepted it without specification, he accepted it against the entire debt. However, if he specified that he accepts it against the entire debt, then even if the mashkon is worth much less than the debt, when the mashkon is lost, his entire debt is lost. If he received two items and specified that he accepts them for the entire debt, if one of them is lost, he loses half of his debt when both are of equal value. If one is worth more—for example, if he lent him ten dinars and he gave him two items, one worth four and the second worth two dinars—if he did not accept them for the entire debt and one of them is lost, he loses according to the value of the item. But if he accepted them for the entire debt, he loses according to the value of the item that was lost, and regarding the remaining four dinars, he loses two dinars for each one [Netivot HaMishpat], for regarding the remainder there is no difference in their values; since both of them are not worth the entire debt and he accepted them for the entire debt, the small item bears the loss of the remainder proportionally to the large one. If the value of the mashkon exceeds the debt, the lender gives the remainder to the borrower. If the mashkon was lost by ones, such as if it was taken by armed bandits or burned by ones and similar cases among other types of ones, if there are witnesses that it was lost by ones, the lender is exempt. Even one witness exempts him, for one witness who assists him exempts him from an oath, as has been explained in siman 75 [so it appears to me]. The borrower is then obligated to pay him his entire debt. If there are no witnesses, the lender must swear a biblical oath that it was lost by ones, and the borrower pays him his entire debt. Even if he specified that he accepts responsibility upon himself, responsibility for ones is not included unless he specified responsibility for ones. All this applies when the borrower does not claim with certainty that it was not lost by ones; but if he claims with certainty that it was not lost by ones, the borrower swears a shevuat hesset and is exempt. Even though regarding the oath of shomrim there is no difference whether the depositor contradicts the shomer or not, it is different there because the shomer comes to exempt himself, therefore he swears and is exempt; but here, where the lender swears in order to collect from the borrower, therefore when the borrower claims with certainty, it is like "I do not know if I became indebted to you," which will be explained in siman 75, that he swears and is exempt. Furthermore, here the borrower is not exempt by an oath except when he has a migo of "I paid you," but when he has no migo—for example, if it is a loan with a shetar or if there are witnesses that he did not pay—in truth the borrower is not believed, and the lender shall swear and collect. It is not relevant in this case to say that it is like "I do not know if I became indebted to you," for behold, the shetar or the witnesses testify that he owes him, and he comes to exempt himself with the claim of the mashkon. The Torah believed every shomer with an oath, and since he swears, he is discharged from his guardianship, and the debt remains in its force, and regarding the debt he has no migo [so it appears to me, and see Urim VeTummim and Netivot HaMishpat].

And there are some of our teachers, the Rishonim, who disagree and say that in a case where the lender derives no benefit from the transaction, such as a mashkon in gemilut chasadim loans, he only has the status of a shomer chinam even if he took the mashkon not at the time of his loan [Netivot HaMishpat] regarding this matter: that when it is stolen or lost, he does not pay the amount that the mashkon is worth in excess of the debt, but his debt is lost, for in this it is as if he explicitly stated that if it is stolen or lost, he will lose his debt; but when it is lost through an oines, the borrower is obligated to pay him, as I have written. However, when he receives benefit from the transaction, such as credit for merchandise, or rent, or an iska loan, he is a complete shomer sachar. And similarly, if he made the mashkon an explicit apoteiki, that if he does not pay him by a certain time the mashkon remains with the lender, he is also a shomer sachar even in a gemilut chasadim loan [ibid.], for it is somewhat like his own. Nevertheless, in an oines, the borrower is obligated to pay him [it appears to me].

And according to this opinion, if part of the mashkon was stolen or lost, he collects his debt from the remainder and does not need to pay for the part that was lost, for regarding the amount exceeding his debt, he is only a shomer chinam. However, if the remainder is not sufficient for the debt, it is the loss of the lender, for corresponding to his debt, he is a shomer sachar. And if the mashkon is land, even when the language of sale is written in the document, nevertheless, since the custom is to return it when he returns the money to him, it is only like a mashkon. Therefore, if the mashkanta was a house and he pledged the house to him along with the land upon which the house was built, and the house burned down without the negligence of the lender, he collects his debt from the land. And if the mashkanta was the house without the land, he has lost his money; and specifically when the fire was not an absolute ones but rather like theft or loss. But if it burned in an absolute ones, he collects his debt from the borrower, as I have written, for there is no difference between a mashkanta of land and of movables [ibid.].

And since there is a dispute regarding this, whether his law is like a shomer sachar or like a shomer chinam, our teacher, the Rema, wrote that it is a legal doubt, and we do not extract money in a case of doubt. Even seizing the object does not avail, and the borrower who comes to collect from the lender the excess over his debt has the lower hand. The lender need only bring proof or swear that it was stolen or lost without his negligence, and he is exempt from the excess over his debt. However, in a case of negligence, he is liable to pay. Similarly, if he took the mashkon not at the time of the loan, without the permission of the beit din and without the will of the borrower, he is like a robber and is liable even for unavoidable accidents. The Tumim and Netivot HaMishpat likewise decided that seizing the object does not avail.

One who lends on a mashkon and deposited it in the hand of another, the lender is liable just as if the mashkon were in his own hand. Not only that, but even if the lender went back and deposited it with the borrower as a deposit and it was stolen or lost, the lender is liable, for the borrower is only a shomer chinam and the lender is a shomer sachar according to the first opinion; and even according to the latter opinion, in any event, against his debt he is a shomer sachar. And there are those who disagree on this, for since the mashkon is in the hand of the borrower, there is no longer any liability upon the lender, and when it is stolen or lost from the hand of the borrower, he is liable to pay the lender his entire debt. And even according to the first opinion, it is only when the borrower accepted upon himself at the time the lender deposited it with him that he would not use it, or when the mashkon was not worth more than his debt, for then even without acceptance it is forbidden for him to use it so that he does not cause the lender to lose from the money of his debt. But if it is within the power of the borrower to use it, it is simple that he is liable for its guarding, and when it is lost he is liable to pay the debt in its entirety to the lender [see Urim VeTumim]. And it is forbidden for the lender to receive payment from the borrower for this, that he returns his mashkon to him, for it would be ribbit [Ktzot HaChoshen]; and even if he took the mashkon not at the time of his loan via beit din, it is forbidden [Netivot HaMishpat].

A person should not pawn his wife's garments and her jewelry that she brought to him without her permission. Nevertheless, if the husband brought his wife's garments to pawn them, it is permitted to lend to him, for presumably he acted with her permission. However, garments and jewelry that the husband made for her, he is permitted to pawn them even without her knowledge [Shach]. And if the husband pawned her garments that she brought to him, and afterwards the wife seized those pledges from the lender and claims that the husband pawned them without her knowledge, she is believed with an oath [Sma]. But to seize another object from the lender is not within her power. And if she seized it and has a migo to say "I did not seize it" or "I returned it," she is also believed with an oath to say that he pawned them without her knowledge; and the lender returns her garments to her, and she returns what she seized [it appears to me].

There was a case where Reuven borrowed money from Shimon on the security of his wife's garments, and Shimon subsequently lent them back to Reuven for the days of the festival. Reuven died during the festival, and Reuven's wife, due to some fear she had, handed over all her husband's belongings into the hand of Shimon. Afterwards, Shimon returned everything to her except for those garments of the pledges. The woman claimed that she had seized the garments for her ketubah and only deposited them in the hand of Shimon because of the fear. They ruled that the law is with Shimon, for since they were with him as a mashkon and he only lent them for the festival, neither she nor the heirs can withhold them, as they are in his domain; for every mashkon is in the domain of the lender as long as he has not returned it to the borrower by way of a complete return.

Reuven who gave Shimon an object to use as a mashkon with a certain lender, and Shimon gave a different mashkon to the lender and withheld Reuven's object in his possession, he becomes a shomer over it as if he had lent him money upon it; for behold, he lent him a mashkon for his mashkon, and what does it matter to me if he lent him money or he lent him a mashkon? And there is no difference whether he borrowed from an Israelite or from a gentile [Sma].

One who lends on a mashkon and the borrower gave him permission to use it with a deduction of a small amount from the debt: if it was at the time of the loan, his status is like a shomer sachar, for he takes the benefit of use in exchange for his loan. However, if the loan was unspecified and afterward he gave him permission to use it, his status is like a sho'el and he is liable even for accidents; for since at the time of the loan there was no such condition, it turns out that afterward when he gave him permission, the lender became like a sho'el, for all the benefit is his. The small deduction is not considered a benefit for the borrower, as this is only so that it will not be ribbit, as I wrote at the beginning of the siman. But at the time of the loan, when he gave him permission, he is not comparable to a sho'el, for a sho'el has all the benefit, whereas here both of them benefit from one another; therefore his status is like a shomer sachar [Shach and Taz]. All this is specifically when the lender explicitly consented to the use, but if the borrower said "I give you permission to use it" and the lender remained silent, there is a doubt whether silence is like acceptance or not. Therefore, at the time of the loan, there is a doubt whether his status is like a shomer chinam or like a shomer sachar according to the opinion in section 4; and not at the time of the loan, there is a doubt whether his status is like a sho'el or not. And since there is a doubt, the burden of proof is on the claimant [so it appears to me, and see Machaneh Ephraim].

One who was distrained by the trustees of the community for his portion due from the tax to the ruler, and the pledge was stolen or lost, the community and the trustee do not have the law of a shomer sachar. The reason is because the tax payers are not liable to one another at all such that we should consider them as if they are distraining for their own debt, for every individual is liable for his portion, and the community and the trustee were appointed to be trustees and guardians over each and every individual so that he pays his portion. And even if the community already paid the portion of those who were distrained, and if so, when they collect they take the money for themselves, nevertheless, their collection is not like the collection of their own debt; rather, they lent for the tax and now they collect and are repaid from them. And so too, if the money they collected from some people was lost while with them, in a place where they do not have permission to use the money, the loss is not upon them but upon those from whom they collected, and they must give other money. And specifically when the trustee does not take a wage from the community, and similarly all those involved derive no benefit from the community at all; but when they take a wage or have some benefit of pleasure, their law is like a shomer sachar [it appears to me]. And so too, if the money or the pledges were lost through their negligence, the community or the trustee are liable, for granted that they are shomrei chinam, even a shomer chinam is liable for negligence. And if they have permission to use the money, their law is like a sho'el and they are liable even for accidents. And so too, charity collectors who took a pledge, their law is only like a shomer chinam. And so too, a third party with whom an object was deposited, his law is only like a shomer chinam [Netivot HaMishpat]. And if the collectors or the third party take a wage, they have the law of a shomer sachar. And all these laws apply in a place where there is no custom regarding this; but in a place where there is a custom, one follows the custom, whether to be lenient or to be stringent.

One who lends on a mashkon and the lender dies, his son’s law is also like his father’s; for since the son also holds the mashkon for the debt, he is obligated to guard the mashkon. But if the son did not know of the mashkon at all, he has no law of guarding at all [it appears to me]. And so too a minor son is exempt from everything, for there is no law of guarding for a minor [Netivot HaMishpat]. And if it was lost, the borrower must pay the entire debt. And if the father commanded his son to return the mashkon for free and afterwards the mashkon was lost, the law of the orphan is only as a shomer chinam [Shach], for behold, he is not holding it for his money.

One who lends on a mashkon, and at the time of receiving the mashkon the lender said, "I do not accept its responsibility upon myself," he is not even a shomer chinam and is exempt even from negligence, for the language of "responsibility" implies even regarding negligence, and he is not liable unless he damaged it with his own hands.

An incident occurred involving a Cuthite who pawned a precious sword with Shimon, and Reuven asked Shimon for the sword, but Shimon did not tell him that it was a precious sword, and the sword was lost from him. Shimon claims a large sum of money from Reuven, just as the Cuthite claims from him. They ruled that Reuven is only required to pay Shimon the value of a simple sword, like an ordinary sword that is sold; for since he did not tell him that it was a precious sword, and he did not break it or lose it with his own hands but only was negligent in its guarding, he is therefore only liable according to the guarding that he accepted upon himself. And all the more so if the Cuthite is making a false accusation against Shimon to claim more than its value, Reuven is not liable to pay that much even if he broke it with his own hands, for it is not because the Cuthite acts lawlessly toward Shimon that we should obligate Reuven for more than its value. However, regarding its actual value, he is liable to pay when he damaged it with his own hands even when he thought it was a simple sword, for why should he have damaged it with his own hands?

And so it should be ruled regarding any mashkon or pikadon that the lender or the bailee is obligated to pay for, and the borrower or the depositor clarifies that this object was worth much more than an ordinary object of its kind: if he did not tell him that it was a precious object, he only needs to pay him like an ordinary object of its kind. And if he damaged it with his own hands, he must pay the full value of its worth. And more than its worth he does not need to pay, even if the object belonged to another and the other makes false claims against him and the borrower or depositor is forced to pay the other according to his will; nevertheless, he only needs to pay according to its worth. And regarding one who borrows an object of a gentile from his fellow Israelite in the previous section, if the lender informed him that it belongs to the gentile, the great Acharonim have decided that the borrower is liable for whatever the gentile falsely claims against him, for he is like a guarantor to the gentile on behalf of the lender. And it appears to me that this is only regarding a borrower, where all the benefit is his; but regarding a mashkon and a depositor, even if the borrower or the depositor informed him that the object belongs to a gentile and it was lost in a manner that the bailee or the lender is obligated to pay, he is not liable for what the gentile falsely claims against him more than its worth. And even if the lender has benefit from the loan, such as in an iska, nevertheless, all the benefit is not his as in the case of a borrower, for behold, it is the benefit of both of them, like a renter and a shomer sachar.

When the lender is liable to pay, such as in cases of theft or loss according to the opinion in section 3, or in cases of negligence according to all opinions, or in a situation where he received a benefit—nevertheless, if the borrower does not believe him that it was stolen or lost, he can compel the lender to swear a severe oath with the holding of a sacred object that the mashkon is not in his possession. This oath is an enactment of the sages [beginning of the third chapter of Bava Metzia], and they were more stringent regarding this oath than regarding a shevuat hesset, and it requires the holding of a sacred object because we concern ourselves that perhaps he set his eyes upon the object to keep it for himself and pay for it. This is unless there are witnesses that it was stolen or lost, or that such an object is common in the market to be purchased for the same money that the lender is paying, in which case he pays and does not swear. This applies specifically when there is no oath incumbent upon the borrower, such as when there is no denial between them regarding the value of the mashkon or if there are witnesses as to how much it was worth. However, when there is a denial between them and the borrower must swear how much it was worth, as will be explained—whether his oath is in order to collect or whether it is to be exempt, whether his oath is due to the fundamental law or whether the oath was incumbent upon the lender and he reversed it upon him, as these details will be explained—then the lender is never spared from the oath that it is not in his possession, even when the borrower believes him that it is not in his possession. This matter is an enactment of the sages [ibid.] because we concern ourselves that perhaps after the borrower swears, the lender will subsequently produce the mashkon and clarify that the borrower swore falsely, and it will turn out that the Name of Heaven is desecrated, Heaven forbid. Therefore, the lender must swear first that it is not in his possession, and afterwards the borrower shall swear the oath that he is obligated in. Therefore, if the lender does not wish to swear, he has no remedy unless he also exempts the borrower from the oath that he is obligated in and only that he accepts a ban in general, and then he too is exempt from the oath [Shach]. Nevertheless, the borrower can impose a cherem stam upon anyone who has the mashkon in their possession and does not reveal it. And one must know that in every place where we explain in this siman that the borrower must swear regarding the matter of the mashkon, if the lender does not wish to waive his oath, the lender is obligated to swear first that the mashkon is not in his possession.

When the mashkon was stolen or lost in a manner where the lender is obligated to pay, and there is a denial between them regarding the value of the mashkon—where the lender says, "I lent you a sela, which is four dinarim, upon it, and it was only worth a shekel, which is two dinarim, and I am owed two dinarim," and the borrower says, "You lent me a sela and it was worth a sela"—behold, the lender first takes an oath that it is not in his possession, as has been written, and afterwards the borrower takes a shevuat hesset that it was worth a sela and is exempt, according to the law of all those who swear, who swear and are exempt with a hesset when one does not admit to a part.

The lender said, "I lent you a sela upon it and it was worth a shekel," and the borrower says, "You lent me a sela and it was worth three dinars," and he admits that a dinar is due to him: the lender first swears that it is not in his possession, and afterwards the borrower swears a shevuat de'oraita, for he has admitted to a part, and he pays the dinar that he admitted. And if he says, "Here is the dinar for you," he swears a shevuat hesset, as will be explained in siman 75, for anyone who admits to a part and places the part he admitted before the claimant is exempt from a shevuat de'oraita and swears only a shevuat hesset.

The lender said, "I lent you a sela upon it and it was worth a shekel," and the borrower says, "I do not know its value," the lender shall swear that it is not in his possession and include in his oath that it was only worth a shekel, and the borrower shall pay him the shekel. And why is the lender trusted to swear and take, when most oaths are to swear and be exempt? Because the lender does not need to swear regarding this at all and should take without an oath, for since the borrower admits that he is indebted to him and does not know if he paid him with this mashkon or not, and we hold that anyone who says, "I know that I am indebted to you but I do not know if I paid you," is obligated to pay without an oath from the opposing party. It is only here, where the lender is subject to an oath that it is not in his possession, that one rolls upon him this oath as well. Therefore, if he believes the lender that it was lost or if there are witnesses, he takes the shekel from him without an oath, and only the borrower can impose a herem stam upon whoever takes his money unlawfully.

When the borrower claims the excess from the lender in a case where he is liable as has been explained, and says, "You lent me a sela upon it and it was worth two," and the lender says that it was only worth a sela—if the borrower believes him that it was lost or if there are witnesses, the lender swears a shevuat hesset that it was only worth a sela and is exempt. And if he must swear that it is not in his possession, and this oath is a severe oath as I have written, the borrower includes in this oath by way of gilgul that it was also not worth more than a sela. And if the lender admits to a part, for example, if he says that it was worth five dinars, he shall swear a shevuat de'oraita that it was not worth more than five dinars, and in this oath he shall swear that it is not in his possession if he does not believe him and he has no witnesses, and he pays him the dinar that he admitted. And if the lender said to him, "Here is the dinar," or if he said to him that he was already owed a dinar by him and he does not admit to a part—if the borrower believes him that it was lost, he swears a shevuat hesset that it was not worth more and is exempt, and if he must swear that it is not in his possession, he includes by way of gilgul in this severe oath that it was also not worth more.

If the borrower said: "You lent me a sela upon it and it was worth two," and the lender says: "I do not know how much it was worth," if there are witnesses that it was lost or if he believes him, the lender swears a shevuat hesset that he does not know it was worth more than the amount of the debt and is exempt. This is not similar to the "I do not know" of the borrower in section 20 where he pays, for there it is like one who says "I do not know if I repaid you," but here the lender does not admit at all that he is liable to him [Sma]. And if he does not believe him and there are no witnesses, the lender must swear a severe oath that it is not in his possession, and in this oath he shall also include that he does not know it was worth more than the debt. Even though we hold that when the defendant claims "perhaps" regarding a gilgul one does not roll over the oath, as will be explained in siman 94, nevertheless, since he is obligated to swear a hesset even without a gilgul, and this severe oath is also not a Torah oath but rather a mishnaic oath and is not far removed from a hesset, therefore he includes this also in this oath [and the difficulty of the Levush and the Shach subsection 47 is settled]. And why do we not apply here the law of "since he is unable to swear, he pays"? For we do not say this law regarding a rabbinic oath [Sma], as written in siman 75. Therefore, if the lender says that he knows it was worth more than the debt but only does not know how much, and it turns out that he is obligated in a Torah oath since he admitted in part—and presumably there is at least the value of a perutah in this part that he admitted, for otherwise he would not have said it was worth more—therefore his law is that he is obligated to swear and is unable to swear, and he pays him his sela. The lender can only cast a herem stam upon whoever claims falsely. However, that which we wrote that we apply here this law of "unable to swear and pays," this is the opinion of the Rambam and his teachers. But there are some of our teachers who disagree with him and hold that this law only applies in a place where he should have known clearly, such as where he claims a maneh from him and the defendant responds "fifty I know I owe you and fifty I do not know," for his claim is weak, as why does he not know how much he borrowed from him? In that case we apply "since he is unable to swear, he pays." But regarding a mashkon, from where should the lender know clearly how much it was worth? Therefore he does not pay and swears that he does not know it was worth more than the debt. And for another reason they disagree with him, for he did not admit to a known sum, as will be explained in siman 88. And some say that even this is called a known sum, since the mashkon is not before us and the borrower is unable to claim from him based on his admission more than a perutah, and it is properly like admitting to a known sum, namely a perutah [Shach]. And it is also possible that the lender knows how much it was worth, so one may properly apply here the law of "since he is unable to swear, he pays" [ibid.], for specifically when the claimant knows clearly that the defendant cannot know we do not apply this law, but in a place where the claimant does not know if the defendant knows or not, we properly apply this law. And more will be explained regarding this in siman 75 with the help of Heaven.

If both claim against one another, for example, the borrower says, "You lent me a sela on it and it was worth two," and the lender says, "I lent you a sela and it was worth a shekel," the lender swears that it is not in his possession and includes in his oath that it was not worth more than a sela, and the borrower swears a shevuat hesset that it was not worth less than a sela. And if the borrower believes him that it was lost, or there are witnesses, the lender also only swears a shevuat hesset that it was not worth more than a sela. And even though we explained in section 17 that when the borrower must swear, the lender does not escape the oath that it is not in his possession even when the borrower believes him, due to the concern that perhaps the lender will produce the deposit to clarify that the borrower swore falsely; however, here there is no such concern, for the lender must in any case swear a shevuat hesset regarding its value, and if the mashkon were in his hand, he certainly would not swear, and it appears clearly that it is not in his hand, and there is no longer this concern that we wrote. And according to this, the beit din must see here as well that the lender swears first, for if the borrower swears first, we fear that afterwards the lender will not swear and will produce the mashkon and clarify that he swore falsely. And the Tur and the Shulchan Aruch in section 12, who prioritized the oath of the borrower in this law, did not mean it specifically [Sma, Bach, and Shach]. And furthermore, it is possible to say that here we do not fear this concern at all, for he would not swear according to his claim that it was worth two sela, nor does the lender swear that it was worth only a shekel. And the reason is that since both claim against one another, their oath is only to swear and be exempt from one another. Therefore, since this one does not take according to his claim and that one does not take according to his claim, this oath is like the law of two people holding a garment, where each one swears that he has no less than half of it, as will be explained in siman 138, and they do not swear regarding the whole since they only take halves; and why should they swear regarding what they do not take, and why should they contradict each other's oaths such that a false oath would be apparent from one of them in any case? And here too it is so. And since the borrower does not swear according to his claim but rather close to the claim of the lender, we do not fear the concern that perhaps he will produce it afterwards. And according to this, the borrower can also swear first, and the words of the Tur and the Shulchan Aruch are precise [so it appears to me, for it is difficult to say of the Ba'al HaTerumot and the Tur and Shulchan Aruch that they did not speak specifically].

When both of them admit to one another, such that the borrower says, "You lent me a sela upon it and it was worth a sela," and he desires to redeem the mashkon, and the lender admits that it is so but says that it was lost—if he has no witnesses and he does not believe him, and the mashkon is not a thing that is commonly found to be purchased in the market, the lender shall swear that it is not in his possession, and this shall offset that, and the lender loses his debt. For against his debt, according to all opinions, he is like a shomer sachar, as we have explained. And know that in any place where we said that there are witnesses as to how much it was worth, the same applies to one witness; for since there is a witness who assists the lender, he exempts him from an oath, as I have written [it appears to me].

If the borrower sues him for the surplus, in that the mashkon was worth more than the debt, and there are witnesses to this or the lender admits to this, but he says that it was lost through an oness and sues the borrower for his debt—if the borrower does not contradict him with certainty that it was not an oness, the lender shall swear that it is not in his possession, and that he did not lay a hand upon it, and that it was lost through an oness, and he collects his debt from the borrower. And why does the lender extract payment through an oath, for behold, most oaths are only to exempt oneself and not to take, except in a place where the sages enacted it? Because the borrower does not know with certainty how it was lost, and it is like "you lent to me and I do not know if I repaid you," where he is obligated to pay without an oath, as has been written. Therefore, if he claims with certainty that it was not lost through an oness, the borrower swears a shevuat hesset and is exempt [Sma and Shach], even when the borrower does not have a migo to deny the debt, as will be explained in section 55. And so too according to the opinion we wrote in section 4, that his law is like a shomer chinam on the surplus beyond the debt—and we explained that one cannot extract money against this opinion—if there were witnesses that the mashkon was stolen and that it was worth more than his debt, but they do not know if the theft was through his negligence or not, and the borrower claims with certainty that it was stolen through his negligence, or he claims perhaps it was stolen through his negligence and sues for the surplus, and the lender says he was not negligent and is exempt from the surplus, the lender swears a shevuat de'oraita like any shomer chinam that he was not negligent with it, and that he did not lay a hand upon it, and that it is not in his possession, as has been written in siman 295. And why is the lender believed with an oath even when the borrower claims with certainty? Because this oath of his is to exempt himself, and his law is like any shomer whom the Torah believed with an oath. And even if there are no witnesses that it was worth more, but only the lender admits to this, nevertheless, the lender is not exempt from the oath of shomrim, and he is not believed with a shevuat hesset by a migo that if he wanted he could have said it was not worth more and would have only sworn a shevuat hesset; for we do not say migo regarding the oath of shomrim, as every shomer has a migo of "the thing never happened," rather it is a decree of the Torah that he must swear, either because we do not say migo to be exempt from an oath, or because it is a migo of audacity, as will be explained in siman 82 [Urim VeTummim].

If the mashkon was not lost, but rather the borrower claims that its value has decreased and claims that it is certain to him that it decreased due to rot, or that mice or moths ate it—if the lender claims that it did not decrease, he takes a shevuat hesset and is exempt. Similarly, if the lender claims, "It is true that it decreased, but not through my negligence, for I guarded it properly in a place protected from mice and rot and I shook it out properly, and the decrease is like an oness," he also takes a shevuat hesset that it is as he says, and is exempt. And there are those who asked regarding this: why should he not be liable for the shevuat hashomrim? And what difference is there between it being entirely lost and it being partially lost, which is to say that the object was damaged [Shach]? And there was one who wished to say that shevuat hashomrim is only when the depositor claims "perhaps" and not when he claims "certainly," but this is not a logical reasoning at all [Urim VeTummim and Netivot HaMishpat]. And there was one who wished to say it is because he has a migo, for if he wanted, he could have said it was not damaged at all; but this too cannot be said, for regarding shevuat shomrim we do not say migo, as was written in the previous section [Shach]. And it appears to me that the reason is that the Torah only mandated shevuat hashomrim in a case where the damage is visible to all, as it is written: "and it dies, or is broken, or is captured." But regarding the damage of an object where the object is physically whole, but he says it was damaged, there is no shevuat hashomrim in this. And there is further proof for this from the verse, as it is written: "and it dies, or is broken, or is captured, no one seeing, the oath of Hashem shall be etc." and we derive that when there is a witness, his oath is not effective and he must bring witnesses, as will be explained in siman 305. And consequently it is explained that the oath is only relevant in a place where it is the way of onlookers to know, such as death, breaking, or capture; but a slight damage in the essence of the object is not something usually known except by the owner who has a complete recognition of it. Furthermore, regarding shevuat shomrim, the Torah mandated three oaths: that he was not negligent with it, that he did not stretch forth his hand against it, and that it is not in his possession. And if there is also an oath regarding the damage of an object, it turns out there is another oath—that the object was not damaged through his negligence—and the Torah did not mandate this oath at all. And if you say that in truth this is specifically only when the shomer admitted that it was damaged in his house, but says that he was under duress, and in this case he surely swears an oath "that I was not negligent"—it is impossible to say so, for on the contrary, the entire shevuat shomrim is only when the shomer denies his liability, and how can we say that this oath would depend specifically on his admission? Only regarding the essence of the deposit does it depend on his admission, but not regarding his liability [and perhaps this is the explanation of the Sma in subsection 79 in his second answer, see there]. And there are those who answer that the essence of shevuat hashomrim is that it is not in his possession, and along with this he swears that he was not negligent and did not stretch forth his hand, as will be explained in siman 294; therefore here, where the deposit is whole and the oath "that it is not in his possession" is not relevant, there are no shevuat shomrim at all [Urim VeTummim and Chacham Tzevi]. But one cannot say that shevuat hashomrim is not relevant in this because shevuat hashomrim is only to exempt oneself, whereas here it is possible that the lender will extract money from him if it is currently not worth the value of his debt—as there was one who wished to answer so—for in truth it is proven from several places that even in such a case there is shevuat shomrim, for in truth this is not an oath to extract, as this oath is in order to exempt himself from the object, and the debt remains automatically as it was at first [as appears to my humble opinion].

And if the lender admits that he did not place it in a guarded location or that he did not shake it out properly, he is liable to pay for the depreciation, for he is negligent. And if the borrower says that it depreciated significantly and the lender says it depreciated only a little: if the borrower admits that even previously it was only worth the amount of the debt, and the lender says that initially it also was not worth the amount of the debt—for example, he borrowed 20 dinars from him and now the mashkon is worth ten, and the borrower says it was worth 20 previously, and the lender says it was worth only 15 and he has only five dinars to pay, and the lender says, "If I agree to keep the mashkon for myself, give me five dinars that were previously lacking from the debt, and if I do not agree to keep it, give me 15 dinars," for the borrower cannot compel the lender to accept the mashkon even when it was damaged in his possession [Shach]—the borrower swears a shevuat hesset and is not liable for a shevua de-oraita like the law of a modeh be-miktzat, because the mashkon is in the hand of the lender and the mashkon is "heilech," and the law of modeh be-miktzat does not apply to it. And some say that he is liable for a shevua de-oraita because the mashkon is not "heilech" since it is standing to be redeemed [ibid.]. And if he has nothing with which to pay besides the mashkon, it is certainly like "heilech" even according to this opinion, and he swears only a shevuat hesset [Netivot HaMishpat]. But the lender does not need to swear at all, for even according to the words of the borrower, nothing is coming to him from the lender since it was only worth the amount of his debt; therefore, the borrower shall swear like all those who swear and are exempt.

If the borrower sues the lender, such as by claiming that it was worth thirty and the debt is twenty and now it is worth fifteen, and he demands ten from him and that he keep the mashkon for himself because he does not wish to receive it with the damage; and the lender says that it was only worth twenty-five and he only has to give the borrower five if he wishes to keep it for himself, and if he does not wish to keep it he demands ten from him—the lender takes an oath while holding a sacred object [Shach] that it only decreased by ten, and he may return the mashkon to him and deduct ten from his debt, and the borrower pays him ten. And if he wishes to keep it for himself, he pays the borrower five and collects his debt from the mashkon, for he is believed with an oath up to its value. And even though the lender admits to a part, nevertheless he is not liable for a Torah oath since the mashkon is still worth more than his admission and the mashkon belongs to the borrower, and it is considered "heilech" [Sma]. And all the more so if even after it decreased it is worth the amount of the debt and they disagree regarding the decrease, or if the lender says "I do not know how much it decreased," that the lender takes an oath while holding a sacred object [ibid. and Shach]. And one should not say that since he admits it decreased and does not know by how much, he should be "liable for an oath and unable to swear" and must pay according to the opinion of the Rambam that we explained in section 22; for since he has in his hand against it the value of his loan, it is considered "heilech," as the lender can say to the borrower: "Whatever is known to you to have decreased, deduct it for me from your debt" [ibid.].

A borrower who said to the lender, "I paid you such-and-such amount against the mashkon," and the lender says, "You did not pay me," or "You paid me less than what you say," the lender swears and takes according to what he says. For since the mashkon is in the hand of the lender, the borrower is coming to extract from him. And we do not say that since the lender has nothing on the mashkon but a mere lien, it is as if he is the claimant and the borrower should swear a shevuat hesset and be exempt from the sum he says—as in a claim of doubt which will be explained in this section—for since the lender is the muchzak in the mashkon and claims a claim of certainty, we do not have the power to extract from his hand, and his law is like a lender with a shtar who swears and takes [Netivot HaMishpat, subsection 35]. And even though there are those who disagree and say that the lender is not called a muchzak even in a claim of certainty, the halacha is not so [Shach, subsection 109]. And specifically when witnesses know that he lent to him against the mashkon, and it will be explained in section 45. And if the lender says, "It is true that you paid me, but I do not know how much," the borrower is believed and does not even need to swear, but he imposes upon him a cherem stam [Shach], because of the reason we wrote: that the lender has nothing on the mashkon but a mere lien, and it is as if he is the claimant, and a person does not extract from his fellow nor make him swear based on a claim of doubt. And even when the lender could say regarding the mashkon, "It is purchased in my hand," according to the details that will be explained in this siman, nevertheless the borrower is believed without an oath, for a claim of doubt is nothing for one who comes to extract. But in a claim of certainty, the lender is believed with an oath up to its value if witnesses know of the loan; but if witnesses do not know, and the lender does not have a migo of "it is purchased in my hand," the borrower swears a shevuat hesset and pays as he says.

If one witness testifies contrary to the words of the borrower, if the lender does not know, the borrower swears against the witness and takes the pledge according to his claim, and he swears with a sacred object according to the law of those who swear and take which will be explained in siman 89. And he does not swear a Torah oath against the witness, for a Torah oath is only to swear and be exempt. And if it is the will of the lender to have him swear a Torah oath, he shall return the pledge to him, and then he will be able to have him swear a Torah oath to contradict the witness [ibid.]. And if the lender claims with certainty and the witness testifies according to his words, if without the witness the lender would have sworn and taken, he now takes without an oath according to the law of a supporting witness who exempts from an oath, as I wrote in siman 75. And if without the witness he would not have sworn and taken, such as where witnesses do not know of the loan and he cannot claim "it was purchased by me," the borrower swears as has been explained. And if the witness testifies according to the words of the borrower, the borrower takes without an oath in all cases.

And there was an incident involving Reuven who borrowed seven dinars from Shimon on a pledge, and afterward Reuven said to him: "I paid you once two dinars, and a second time two dinars, and a third time one dinar, and I still owe you two dinars." Shimon replied: "I only remember the one dinar, and regarding the rest I am in doubt." The Ramban, of blessed memory, ruled that the law is with Reuven because the body of the pledge is his, and it turns out that when he claims his pledge, Shimon answers him: "I do not know if I have any claim upon it regarding what Reuven says he paid." Since this is the case, Shimon cannot claim from Reuven's property based on a doubt, and Reuven is exempt even from an oath, and Shimon has nothing against him but a cherem stam. And if there is one witness, the law is as in the previous section.

One who lends to his fellow on the security of a ring that has a precious stone in it and it was lost, and another ring was found in the city and both parties admit that this ring is equal in value to the one that was lost, and it is known that the ring in the city is worth more than the debt, it is a simple matter that we follow the assessment of the experts. According to how they assess the excess value of this ring over the amount of the debt, the lender must pay when it was lost through his negligence. However, if the borrower claims that his was worth more, and the lender claims that it was worth only like this one, the lender is one who admits to a part of the claim; he gives him what he admits to and takes a biblical oath regarding the remainder. And if the lender says that he does not know if the lost item was worth more or not, and the borrower claims that it was worth more, the lender becomes one who is obligated to take an oath and is unable to do so, and he must pay. Nevertheless, the beit din must threaten the borrower so that he does not lie to assess the lost item at more than its value.

If the lender and the borrower are in dispute regarding the essence of the loan, where the lender says he lent him a sela and the borrower says he only lent him a shekel, if it is a case where the lender could have held onto the mashkon and claimed "it is purchased in my hand," or "I returned it to you," or "the matter never occurred" as will be explained before us, then the lender is believed to say that he lent against it up to its value with a shvua while holding a sacred object. And even though if he had claimed those other claims a shvuat hesset would have sufficed, nevertheless he requires a shvua while holding a sacred object, for we do not say a migo to exempt from a shvua. Furthermore, since the lender does not claim regarding the body of the mashkon that it is his, but rather his desire is to collect his debt from it, he may not collect without a shvua while holding a sacred object. His own admission is no better than the testimony of witnesses, for if they were to testify that this object is a mashkon in his hand and they do not know for how much, the lender would not take without a shvua while holding a sacred object, as will be explained. And more than this, even if the borrower claims "perhaps," the lender is obligated to swear this shvua, for this is the enactment of the Geonim, that a person may not take an object that he admits is not his because of a claim of some debt without a severe shvua while holding a sacred object [Shach]. And some say that in a claim of "perhaps" he does not need to swear [Urim VeTummim]. And specifically regarding the seizing of an object he requires a shvua while holding a sacred object, but if he seized money he only requires a shvuat hesset, for regarding money it is as if he said regarding an object "it is purchased in my hand," where he would only be obligated to swear a hesset because he does not admit at all that the object currently belongs to the borrower. And so too with money, even though he admits that he is withholding it because of the debt, nevertheless there is no distinction between this money and other money and it is like his own, and he is only obligated to swear a hesset.

One of the great Rishonim wrote that what the Geonim instituted—that the lender must swear with a sacred object regarding the mashkon—is only specifically when the lender is pressing the borrower to repay him now, and if not, he will sell the mashkon and collect his debt. However, if the lender does not force the borrower to repay him now and says that the mashkon shall remain in his possession until he repays him, he only swears a hesset. For since he is not collecting from the mashkon now and is only holding it for his lien, and it is indeed truly liened to him, and regarding the matter of a lien it is like his own [Ran, chapter 7 of Shevuot]. And this is the primary ruling, even though one of the great Acharonim wavers on this [see in the Shach, subsection 71].

Even if the borrower died first and afterwards the lender died, the heirs of the lender collect from the mashkon just as their predecessor would, and we do not say that since their predecessor was obligated to take an oath, "a person does not bequeath money for which he is obligated to swear," as is written in siman 108. For since they are in possession of the mashkon, they are as the hand of their predecessor; and even though they are unable to swear the oath of their predecessor, they shall swear the oath of heirs—that their predecessor did not command them to return the mashkon for such and such—and they collect from the mashkon up to the amount of its value.

This which we have said, that when he has a migo he is believed up to the amount of its value, there is no difference whether the borrower says that he owes less or whether he denies everything and says that this is not a mashkon but rather it is a deposit; behold, the lender is paid from the mashkon up to the value of the object. And if it is not worth the amount of his claim, for example, he claims a sela and it is only worth a shekel, if the borrower does not admit to more than the shekel or if he denies everything, the lender takes the shekel from the mashkon with an oath as has been written, and on the remainder the borrower swears a shevuat hesset and is exempt. But if the borrower admits to more than a shekel, he swears a shevuat de'oraita according to the law of one who admits to a partial claim, and he pays the remainder that he admitted to above the value of the mashkon.

Since the lender has a migo regarding the mashkon to say "it is bought" or "I returned it" or "it never happened," he is believed up to the amount of its value even if the mashkon was of items that the Torah prohibited to take as a mashkon, such as the garment of a widow or vessels used for preparing food. We do not say that since he is obligated to return them he has no migo; rather, since there are no witnesses and he could have denied it, he can claim up to its value. For in any case, if we suspect him of being a robber, what does it matter to him if there is an additional prohibition upon him? And if we say that since there is a prohibition and he is compelled to return them because he does not wish to commit a transgression, if so, he is certainly telling the truth and would not rob him. And all the more so in a place where there is an enactment that one should not withhold his fellow's object that came into his hand by way of a loan or a deposit, or a teacher with the books from which he teaches the youths and he seizes them for another debt not on account of his tuition—for on account of tuition he may withhold the book as was written in Yoreh Deah at the end of siman 334—that he has not lost his migo for the reason we have explained.

When the lender claims regarding the mashkon that it is owed to him, it is proper for the beit din to tell him to clarify his words as to in what manner it is owed to him; however, this is not a requirement, and he may swear generally that he is owed an amount corresponding to the value of this object. But he himself must know clearly that the owner of the object is indebted to him, such as if he has a loan or a deposit in the hand of the owner of the object, and it is clear to him that his counterpart was not a victim of an accident, and the like. But when he has a doubt as to whether he is indebted to him or not, this is a false oath when he swears. And likewise, he cannot withhold the object of his fellow unless his fellow owes him money; but regarding any other type of claim, such as if he claims that he should give him some release or the like from other matters of claims that are not monetary—and for the fact that he owes him an oath pertaining to money—it appears that he may withhold it. And anyone who can claim regarding the object of his fellow placed in his hand, he has no right to it except from the time of standing in beit din and after the assessment, and not from the time of the seizure. Therefore, if the object increased in value before the assessment, it increased in value in the domain of the original owner.

And all this is in a case where the lender has a migo, in that he could claim "purchased" or "I returned it to you" or "these things never occurred." But in a place where he cannot claim this, the borrower swears a hesat oath that he only lent him a shekel, and he pays him the shekel and takes his pledge. For if he were to take the pledge beforehand, he would be obligated in an oath by Torah law according to the law of one who admits to a part of the claim. And if he claims that he did not lend to him at all and it is a deposit in his hand, he can swear even after he has taken the object [see Shach subsection 82 and it requires further study], as is the law regarding all movable property that another is holding, as will be explained in siman 133. And we will explain when the lender has a migo and when he does not.

If witnesses did not see the object in his possession now, he has a migo of "I returned it to you," even if there are witnesses that it came into his possession as a loan. And if witnesses saw it in his possession now and he cannot say "I returned it," if there are no witnesses that it came into his possession as a loan, he can say "it is purchased in my hand," unless they are vessels that are made to be lent or rented. And all the more so if they did not see it in his possession now and there are no witnesses that it came into his possession, that he can say "these things never happened." It results that in every matter he has a migo, except if there are witnesses that it came into his possession as a loan and now witnesses saw the object in his possession; then he has no migo. And even if there are no witnesses that it came into his possession as a loan, if they are from things that are made to be lent or rented, he cannot say "it is purchased in my hand." And according to this, when they did not see it in his possession, he always has a migo, even with things that are made to be lent or rented, for he has a migo of "I returned it to you." And when they saw it, if they are things that are made to be lent or rented, or if there are witnesses that it came into his possession as a loan, then he has no migo at all.

And what are "items made to be lent or rented"? According to the Rambam, it is specifically vessels whose initial manufacture is for lending and renting, and not that the owner of the vessel uses it for himself, such as large cauldrons used for cooking in banquet houses, where one who makes a banquet borrows or rents this vessel, and so too anything similar to this according to the custom of the land [Chapter 8 of To'en]. It follows that according to his words, all vessels that a person uses for himself are not called "made to be lent or rented." However, the Rif and Rabbeinu Tam, of blessed memory, explain that what the Sages, of blessed memory, said regarding "made to be lent or rented" means that it is the way of a homeowner to lend or rent to his fellow, and these are the majority of vessels, except for vessels that people are fastidious about due to their importance or so they do not get damaged, for these vessels are not lent or rented. According to this, most vessels are "made to be lent or rented," only that in this we must see if the one in whose hand the object is found is a regular visitor who comes and goes at the home of the owner of the object, and also that the owner of the object be accustomed to lending his vessels, and this depends on the man's love or hatred, and according to the custom of the place, and according to the sight of the eyes of the dayan based on the standing of the plaintiff and the defendant. Most of our teachers adopted the latter opinion, and so it appears from the responsa of the Rashba brought in the Beit Yosef, and so one should instruct.

And what is called "seen" is not specifically that the witnesses saw the object in his hand at the time he was summoned to beit din, but even if they saw it in his hand prior to that and he claimed then that they were sold to him or another claim according to which it is not appropriate to return it, for from now on he has no migo that he could have said "I returned them," as we are witnesses that according to the words he spoke to the witnesses, he certainly did not return them. And this is specifically regarding items that are typically lent or rented; but regarding items that are not typically lent or rented, even though the witnesses saw them initially, nevertheless, at the time of their seeing he claimed they were sold to him, and if so, when he claims now "I have such and such against him," he is believed up to their value with a migo that he could have stood by the previous claim of sale [Shach]. And all the more so if at the time they saw them in his hand he did not say they were sold to him, for he can say that afterwards he returned them, even regarding items typically lent or rented. And it is only effective if they saw them in his hand at the time he was summoned to beit din, for then even regarding items not typically lent or rented he loses his migo, as I wrote in section 40. And so too if the matter is public knowledge that these vessels are in his hand, even though there are no witnesses before us who see them in his hand now, he cannot say "they are purchased in my hand," even regarding vessels not typically lent or rented, for there is no migo here of "I returned them," as he is afraid to speak a lie regarding a matter known to the public. And so too if there are witnesses who see them in his hand now, even if they are disqualified witnesses such as women, minors, or those disqualified from testimony, nevertheless he loses his migo, as he is afraid to speak a lie because of those who contradict him [it appears to me]. And in this manner, when they see them in his hand now, even if he said at the time they saw that he owes him such and such as he claims now in beit din, he is not believed, since now he has no migo according to the details of the laws we explained in section 40; namely, either they are items typically lent or rented, or there are witnesses that they came into his hand by way of a loan. And that which we wrote that regarding "seen" he has no migo, this means that he cannot claim "purchased" with a migo of "I returned them," but if in any case he claims "I returned them," he is believed [Shach, subsection 92], unless it is also public knowledge even now that he has not yet returned them [it appears to me].

And there is a great question to ask regarding this: for according to what we have written, that regarding items made to be lent or rented where they were seen in his possession, he is not believed, if so, it is impossible to purchase from one's fellow an item made to be lent or rented, for after some time he will sue him in beit din based on witnesses of sighting and say "they are mine." And the answer to this is that certainly, if at the time they saw the object in his possession he said "they are purchased in my hand," and afterwards in beit din he also said "they are purchased in my hand," he is believed. And that which we said, that he is not believed, is specifically if he claimed that they belong to his fellow but that he is owed such-and-such for them; in this he is not believed. And therefore, when a person takes as a mashkon from his fellow items made to be lent or rented, he should receive from him a promissory note and write in it that he took such-and-such an object as a mashkon with him, or he should take it as a mashkon before witnesses. But regarding a sale, it cannot be said that he should sell before witnesses or with a deed, for it is known that it is not the way to sell movables with a deed or with witnesses; and furthermore, he would be required to guard his deed forever, and if he sells before witnesses, what shall he do if they die or go to a province overseas? [It appears so to me, and see in the Shach subsection 91].

"Saw" is only called such when they saw before they came to beit din, meaning at the time of the claim or prior to that, as I wrote in section 42. However, that which they saw the object after their arrival at beit din and arguments broke out between them is not called "saw," for everything follows the time of their arrival at beit din. For if he had a migo then, he is believed up to the amount of its value, for all migos are thus. And even if he showed the vessels in beit din, he did not lose his migo, for specifically when they saw beforehand, then he did not have a migo at the time of their arrival at beit din; and even though he had a migo beforehand, we do not say "migo retroactively," as I wrote in the rules of migo in siman 82. But when he had a migo at the time of their arrival at beit din, it is not relevant to say that he should lose the migo even if the quarrels and the judgment lasted many days.

If there are witnesses that it came into his hand as a mashkon but they do not know for how much, some say that the borrower swears a shevuat hesset and pays according to what he says, since the lender does not have a migo of "it is bought in my hand." And some say that the lender swears and takes, for specifically when the lender and borrower themselves are divided regarding the essence of the loan—and if the borrower were to claim "they are borrowed in your hand" he would be believed with an oath when the lender does not have a migo of "it is bought"—there we say that the borrower swears a shevuat hesset. But when witnesses know that it came into his hand as a mashkon and the borrower cannot say "they are borrowed in your hand," the lender is called the muhzak and swears with a sacred object according to the law of one who comes to take, and he takes according to what he says up to the value of the mashkon [and so it appears from the Rambam, chapter 13 of Malveh, halacha 3, and so wrote the Shach in subsection 109, and not like the Mishneh LaMelech there]. And such is the law regarding repayment as I wrote in section 29. And let this rule be in your hand: that if witnesses do not know at all if he borrowed from him upon the mashkon, then in a place where the lender has no migo to say "it is bought in my hand," the borrower swears a shevuat hesset, whether they are divided regarding repayment or regarding the essence of the loan of how much he lent him. But when witnesses know that it came into his hand as a mashkon, then even if the lender does not have a migo of "it is bought," nevertheless the borrower also cannot say "they are borrowed in your hand," and the lender is called the muhzak and swears with a sacred object and takes according to what he says [and so wrote the Netivot HaMishpat in the Biurim subsection 35, and even though from the Taz in siman 75, section 14, it does not appear so].

And if there is one witness that it came into his hand as a mashkon and he does not know for how much, it depends on the two previous opinions. For according to the first opinion, that with two witnesses the borrower swears and not the lender, if so, with one witness the lender becomes obligated to swear and is unable to swear; for in any place where two witnesses obligate payment, one obligates him to a shbuuah to contradict him, and here the shbuuah is not to contradict him since the witness does not know how much, and consequently the borrower is believed with a shbuuah. And according to the latter opinion, that even with two witnesses the lender swears and takes, certainly with one witness as well, at the very least it is not superior to two witnesses, and the lender swears with a chefetz and takes as much as he says [Shach and Taz]. And if the witness does not know at all of the loan, only that he saw the object in his hand before they came to beit din, the lender becomes obligated to swear and is unable and loses; for when two saw the object he is not believed, as has been explained, and consequently with one he must swear to contradict him, and here he does not contradict him that he did not see the object in his hand, but rather he claims another claim, that it is held as a mashkon by him for such and such, and consequently he cannot swear and loses, as will be explained in siman 75, and the borrower swears a shbuuat hesset.

Our teacher, the Beit Yosef, wrote in section 23: Reuven who borrowed ten dinars from Shimon on a mashkon, and there was one witness to the matter who knew of the mashkon and the debt but did not know how much the debt was, and Shimon says that he lent him twenty dinars—if Shimon produced the mashkon before the beit din or before witnesses before a denial occurred between them, the law is with Reuven; for since there is one witness here, he obligates him in an oath, and behold he admits to the words of the witness and is unable to swear. Therefore, he returns the mashkon and shall bring proof regarding the money and take it, and Reuven shall swear an hesset oath [if Shimon did not bring proof] regarding the ten that he denies. But if before Shimon produced the mashkon in beit din a dispute occurred between them, Shimon is believed and swears while holding a sacred object and takes. Thus far his words. And this is according to the first opinion that was explained; but according to the latter opinion, even if Shimon produced the mashkon beforehand and does not have a migo, nevertheless, since the witness knows that he borrowed on the mashkon even though he does not know how much, the lender swears while holding a sacred object and takes twenty, and such is the halacha [Shach]. And that which our teacher, the Beit Yosef, wrote, "he returns the mashkon etc. and Reuven shall swear an hesset oath etc.," is not exact, for first he swears an hesset oath and afterwards receives the mashkon, for if not so, Reuven would be obligated in a Torah oath according to the law of one who admits to a part, as I wrote in section 39 [see Shach subsection 110].

One who holds a mashkon without witnesses, of whom we have said that since he has a migo of "purchased," he can claim upon it up to its value—if the mashkon is not worth, according to the assessment of experts, more than half of what he claims from him, and the lender says, "I will take it for my debt, and in my eyes it is worth the entirety of my debt," and the borrower says, "Behold, I say that I owe him nothing, and nevertheless, since the law is with him that he should swear and take, let him return the object to me and I will pay him according to the assessment," the law is with the owner of the object. For even though the lender has a migo of "purchased" and the object would have remained with him, nevertheless, we should not believe him by virtue of the migo more than what he says himself, that it is a mashkon in his hand. And how can we establish his possession of this person's object against the will of the owner of the object? Therefore, he gives him according to the assessment and takes the object. And there are those who disagree and hold that the law is with the lender, that he can say, "It is true that the object is his, but I desire to withhold it for my entire debt, regarding which I am believed by law, and if he desires the object, let him pay me my entire debt." And since it is a legal doubt, the borrower cannot extract it from the hand of the lender who is holding the mashkon. And if afterwards the borrower seized the object, even if he seized it with witnesses in a manner where he has no migo of "I did not seize it," nevertheless he can hold the object and pay him according to the assessment, since he is now the holder [Shach]. And even when the lender withholds the object for himself, he must swear with a sacred object, and an hesat oath is not sufficient for him. And even though when he holds the object for himself he is not extracting money from his fellow—which would make his law like one who "swears and takes" who requires an oath with a sacred object—and regarding the object he is the holder, nevertheless, since his claim is not on the body of the object but only on the money that he lent him, and it only remains with him because he holds it and it is not worth the amount of his debt, he is called an extractor [ibid.].

Regarding all vessels and movable objects, when one has a migo of "purchased," he is believed up to the amount of its value as has been written, except for living creatures that go on their own from house to house, such as male and female slaves, domestic animals, wild beasts, and birds. For regarding these, a chazakah is not effective even when he claims "it was purchased by me," as will be explained in siman 135, and they are always in the chazakah of the original owner since they go here and there. Therefore, when he brings witnesses that they were his previously, they are taken from the possessor and given to him, and they administer a shevuat hesset to him that he did not sell them and did not pawn them to him, because their seizure is not considered a valid seizure. A minor slave who cannot walk on his feet and domestic animals delivered to a shepherd, which do not go anywhere without permission, their law is like other movable objects. However, a chazakah of three years is effective for living creatures, and it will be explained there. And anyone who seizes an object from his fellow and claims that he is owed up to its value from business dealings between them must clarify how he became indebted to him, because there are deceivers, and perhaps through his words his deception will be clarified, or that he is mistaken himself, thinking that it is due to him according to his calculation when perhaps it is not due to him.

All this that we have explained—that when he has a migo of "purchased" he may seize his fellow's object—this is specifically when he seizes it by virtue of claims he has against the one who placed this object in his hand. However, if he has a claim against another, and by virtue of this he seizes this object by saying that this object belongs to that certain person against whom he has a claim, and it does not belong to this one who placed it in his hand, there are other laws regarding this, as written in siman 58; see there. And similarly, if one deposited an object with his fellow and said to him that this object belongs to a certain person, and the bailee seizes it by virtue of that certain person and has a migo of "purchased," that certain person may sue the depositor, and the depositor will sue the bailee, and automatically, since the depositor must pay that certain person, the bailee no longer has the ability to withhold it, as written there.

And similarly, regarding what one can claim about an object when he has a migo, this applies whether the object is in his hand or in the hand of another. For example, Reuven deposited an object with Shimon, and Levi brought witnesses that he had deposited this object with Reuven, and now witnesses saw it in Shimon's possession, which constitutes "witnesses and seeing," they take the object from Shimon and return it to Levi. Reuven is not believed to say, "I returned and purchased it from him." Nevertheless, if Shimon lent money to Reuven upon it, Levi is obligated to return the money to Shimon and receive the object because of the "market enactment," for what sin did Shimon commit in this, since he did not know that the object belonged to Levi? This will be further explained in siman 133 and siman 357. And if there are no witnesses that the object belongs to Levi, but Shimon himself admits that he knows the object belongs to Levi and that he deposited it with Reuven, Shimon is obligated to return it to Levi even though he lent money to Reuven upon it, for he was negligent himself by lending to him upon the object of another. And even if he said to him that Levi gave him permission to borrow upon it, he should not have believed him, and he should have asked Levi if he gives him authorization to lend to Reuven upon this object [it appears to me]. And if Shimon does not know, except that the object previously belonged to Levi, but now at the time Reuven deposited it with him he does not know if Reuven purchased it from Levi or not—then if Shimon would be believed against Reuven, such as where there are no "witnesses and seeing," we ourselves claim on behalf of Shimon that perhaps Reuven purchased it from Levi. For Reuven could have claimed "it is purchased in my hand" or "I returned it to Levi," and why should Shimon be disadvantaged such that we would not claim on his behalf this claim that Reuven could have claimed [Shach]? Therefore, Levi must return to Shimon his money up to the value of the object, and Shimon swears with a scroll in hand how much he lent upon it and takes it from Levi. And all the more so if Reuven actually claims this, that he purchased it from Levi, that the law is so. And similarly, if Shimon claims that he knows Reuven purchased it from Levi, he is believed with an oath since he has a migo, for he could have said that he himself purchased it from Levi and he would have been believed since there are no witnesses as to how it came into his hand or they did not see it now in his hand. And the same applies if Shimon claims that he knows clearly that Levi gave permission to Reuven to borrow upon it [it appears to me]. And if Shimon does not know if Reuven purchased it from Levi or if he gave him permission to borrow upon it, and Reuven himself admits that he did not purchase it from Levi and did not borrow upon it with his authorization—if Shimon knew then that it belonged to Levi, even if Reuven told him that Levi gave him permission, he should not have believed him, and he must return it to Levi and claim his money from Reuven. But if he did not know it belonged to Levi and lent upon it, Levi pays him because of the "market enactment," even if there are "witnesses and seeing," as I have written [it appears to me]. And let this principle be in your hand: that when Levi must return the money to Shimon, Reuven is obligated to return the money to him in any event [Netivot HaMishpat], and we do not accept any claim from him; since according to the law Levi suffered a loss through this, he is obligated to return his loss to him.

If the lender and the borrower disagree regarding a mashkon, where the borrower says that he placed a mashkon with him for the debt and the lender says that he lent to him without a mashkon: if according to the words of the borrower the mashkon was worth more than the debt, both of them swear. The borrower must swear a shevuat hesset that the lender is holding his property, and the lender swears a shevuat hesset that he did not have a mashkon placed in his hand. And if the borrower does not wish to swear, he shall pay; and if the lender does not wish to swear, he shall pay the borrower the amount that the mashkon exceeded the debt according to the words of the borrower. And if the borrower also admits that it was worth less than the debt, the borrower shall swear a shevua de'oraita according to the law of modeh be-miktzat. And if he says it was exactly according to the debt, he shall swear a shevuat hesset. And it appears to me that when the borrower says it was only equal to the debt or less, the borrower alone shall swear. And why should the lender swear, and what would he gain by this? Unless the borrower turns it upon him, that he should swear and take. And one cannot say that the lender is forced to swear because of the concern we wrote at the beginning of the siman, that perhaps the lender will produce the object and clarify that the borrower swore falsely; for there, where he swears regarding its value, this concern is relevant, but here he will not truly swear regarding its value. Since there is a denial between them regarding the essence of the mashkon, it is sufficient that he swears that he placed a mashkon with him. And why should we bring them to oaths where one of them will certainly swear falsely? Even though in a place where there is necessity we are not concerned for this—such as when he says it was worth more than the debt, and if the lender does not swear he will be required to pay the borrower the excess—but in a place where the lender will not give anything even after the oath of the borrower alone, and even when he swears he will not take since the borrower also swore, why should he swear in vain? [So it appears to me].

And so both always swear in every case where one claims from his fellow and his fellow from him, for example, where the lender says: I lent you a sela on it and it was worth three dinars, and one dinar is still due to me from you; and the owner of the object says: I did not borrow from you at all, rather I sold you the object for three dinars and you have not yet paid me, and he claims the three dinars from him—both swear to exempt themselves. The lender swears that it is a mashkon in his hand, but he shall not swear that an additional dinar is due to him, since he will not give it to him, why should he swear for it [Shach]? And the owner of the object swears that he sold it to him, but he shall not swear that three dinars are due to him, since he will not give them to him, why should he swear for them? And the object remains in the hand of the lender. And if they wished to reverse this upon one another, meaning that only one shall swear, they may do so; for example, that the owner of the object says to the lender: You swear alone that I pawned it with you for a sela and I will pay you a dinar, or that the lender says to him: You swear that you sold it to me for three dinars and I did not pay you, and then I will pay you. And if they are divided regarding the oath, in that each one casts it upon his fellow, they wait until one of them consents. And if they did not consent, both swear. And if one swore and the second has not yet sworn, he may say: I will not swear and I will pay you according to your oath, unless they compel one another that both should swear as one [it appears to me].

One who holds a mashkon and pressures the borrower to redeem it, and the borrower says to him, "Let it be yours for your debt," he has not acquired it, for he is merely putting him off, unless he accepted with a kinyan sudar. And even though for the body of the mashkon to be acquired a kinyan sudar is not necessary, since it is in his domain, and when he says to him "Let it be yours" his domain acquires it for him, nevertheless here he does not acquire it without a kinyan, for he only says it to him as a mere putting off because he is pressuring him to pay him, and it is like a type of asmachta. And there are those who disagree on this, for according to what will be explained in siman 336 regarding a worker in such a case, he cannot retract, and here too it is so [Shach]. However, one can distinguish that regarding a worker, since he lifts his soul to it, it is certain that he truly transferred it to him, whereas with a creditor who pressures, he only says it as a mere putting off [Urim VeTummim]. And this law is more similar to what will be explained in siman 166 regarding one whose wood and stones fell into the domain of his fellow; even though he said to him, "They are yours," he can retract as long as he has not incurred expenses, see there. Therefore, our teachers, the authors of the Shulchan Aruch, even though in siman 336 they stated without qualification that he cannot retract, nevertheless they wrote in this siman, section 26, and in siman 73, section 17, that the borrower can retract. [And the Nimukei Yosef at the end of Bava Metzia says the opposite, that if a worker can retract, all the more so with a mashkon; but for the reverse there is no proof, and so wrote the Tummim, and from the Nimukei Yosef himself there it is proven from his concluding words, see there and delve into it.] However, if the creditor sold the mashkon in the presence of the borrower and he did not protest, his sale is a valid sale, for this is a complete sign that he resolved in his heart to truly transfer it, for otherwise he would not have remained silent at the time of the sale [Urim VeTummim]. And it appears to me that if he acquired with a kinyan sudar, the creditor acquires immediately; even though they are occupied with that same matter, and it will be explained in siman 195 that one can retract, nevertheless here, where the kinyan sudar is not for the essence of the kinyan, as I wrote, but rather as proof that he transfers it with a whole heart, he cannot retract even when they are occupied with that same matter, for the primary acquisition is because it is placed in his domain.

It has already been explained in section 25 that when the lender says that the mashkon was lost through an ones and the borrower contradicts him with a claim of certainty that it was not lost through an ones, the borrower takes a shevuat hesset and is exempt, even when the borrower does not have a migo, such as when there is a promissory note or when he said to him in the presence of witnesses "do not repay me except in the presence of witnesses." The reason is that since it is known that he gave him a mashkon and he claims with certainty that it was lost through negligence, it is impossible to obligate him, for the burden of proof is upon the claimant [Urim VeTumim subsection 15], not like the one who disagrees in this matter. However, when he claims "perhaps," the lender takes an oath while holding a sacred object that it was lost through an ones and the borrower pays him. And likewise is the law if the lender claims it was lost through an ones and the borrower claims with certainty that the lender sold the mashkon, the borrower takes a shevuat hesset and is exempt; and if he claims "perhaps," the lender takes an oath while holding a sacred object that it was lost through an ones and the borrower pays him.

Reuven pawned an object in the hand of Shimon, and Shimon went and pawned it to Levi, or gave him as a gift that which he had upon the mashkon, and Levi says that the mashkon was taken from his hand by an ones, and Reuven claims it from Shimon and says that it was worth a sela and he only borrowed a shekel upon it, and he claims a shekel from him and says that perhaps it was lost by Levi through negligence, and Shimon says that it was only worth three dinars and he only owes him a dinar; it turns out that Shimon is "modeh b'miktzat" and must swear a "shevuat de'oraita" that it was only worth three dinars. Also, there is upon him an oath that it is not in his possession and that it was lost by an ones, and this oath he is unable to swear since it was not lost from his hand, and Levi cannot exempt him with his oath because Reuven can say, "Levi is not trusted by me." Therefore, Shimon is regarding this oath "obligated to swear and unable," and he pays the third dinar. But regarding the fourth dinar, he can swear that it was only worth three and be exempt [Shach and Taz]. And we do not say that since he cannot swear the oath that it was an ones, he shall not swear this oath either, for this is not a logical reasoning at all. And such is the law if the mashkon was diminished and they disagree on the measure of its diminution, and Shimon admits that it was diminished and does not know if it was by ones and he is exempt or not and he is liable; he is regarding this oath "obligated to swear and unable," and he pays the diminution that he admits, and regarding what he denies, the lender shall swear that it was not diminished except as he says. And the lender can impose a "herem stam" upon one who makes him swear for nothing, and in all oaths it is so, as I wrote in siman 87. And in the first law, if there are witnesses that it was an ones from the hand of Levi, or if Reuven believes Levi, Shimon is exempt and Reuven must pay him the entire debt [Taz]. And Reuven cannot say, "Perhaps if the mashkon were with you it would not have been an ones," for since an ones occurred, what does it matter to me if it was in this house or in that house [Sma]. And if there is a logical reason according to the matter to say that if it were in the hand of Shimon the ones would not have occurred, certainly Reuven is exempt and Shimon must pay the remainder over the debt [it appears to me]. And so too, if it is the way of Reuven to deposit his objects in the hand of Levi, Levi shall swear that it is not in his possession and that it was an ones from him, and Shimon is exempt if this ones would have occurred also with him; and Reuven cannot say, "He is not trusted by me," since Reuven also deposits with him [Shach and Urim VeTumim]. And it is possible that even if the ones would not have occurred with Shimon he is exempt, since it is the way of Reuven to deposit with Levi, the hand of Levi is as the hand of Shimon and he deposited with him with permission [and so it appears from their wording]. Nevertheless, it appears to me that he is liable in such a case, for in this a mashkon is not similar to a pikadon, and it requires further study for the halacha. And if Levi was negligent with it and he does not have the means to pay, Shimon is liable to pay Reuven, even though Reuven is accustomed to deposit with him; and even according to that opinion in siman 291 that when one hands over to his wife and children he is not liable for their negligence, there it is different, for everyone who deposits knows that the bailee will hand over to his wife and children, but to another man, even though he is trusted by him, nevertheless, why did he have to deposit with him [Sma and Taz]. And all these laws that were explained are between Reuven and Shimon, but between Shimon and Levi, if Shimon borrowed from him, the law shall pierce the mountain between them like any borrower and lender [it appears to me]. And that which we explained that Reuven can say "Levi is not trusted by me," this is specifically when it was still within the time, but after the time, the lender has permission to pawn it in the hand of another, and the other shall be in his place for all laws [it appears to me].

Reuven claims from Shimon the mashkon that he had pledged with him, and Shimon replied: "Your son came and took the mashkon from me, saying that you sent him, and I gave it to him." Reuven says that he did not send him and it did not come into his hand. Shimon is a negligent party for having delivered it into the hand of his son, even if he is an adult, for one who pledges a mashkon or lends or deposits with his fellow must return it specifically into his hand, or he must hear from his mouth to whom he commands him to deliver it. Only to his wife does he have permission to return it if she conducts business within the house and has authority over her husband's property, for then her hand is as his hand [Shach]. And Shimon is not even able to impose an oath upon Reuven unless Shimon claims with certainty that Reuven sent him or received it from the hand of his son; then Reuven swears a shevuat hesset and Shimon pays him the value of his mashkon after deducting his debt, if he did not receive the money for the debt from the hand of Reuven's son [it appears to me].

Reuven had money in the hand of Shimon, and Levi requested from Reuven that he lend it to him upon a mashkon. Reuven received the mashkon and gave a document to Shimon that he should give the money to Levi, and he gave it to him, and the mashkon was lost in the hand of Reuven. The matter is simple that Reuven has every law of a lender upon a mashkon, for what difference is there between whether he took the money from his own hand or from the hand of another? However, he does not have the law of a shomer sachar against the debt according to the latter opinion at the beginning of the siman, and against the entire mashkon according to the first opinion there, except from the time that Levi received the money from the hand of Shimon. And if the mashkon was lost before then without negligence, Reuven is exempt from the value of the mashkon, and if afterwards he received the money from Shimon, he is obligated to pay him. And Reuven shall swear the oath of the shomrim according to the law of a shomer chinam if there are no witnesses regarding the loss that it was not lost through negligence and he also does not believe him, and he shall also include in his oath that it was lost before the money came into the hand of Levi, and Levi shall return to him his money that he borrowed. And if it is known that Reuven himself does not know when it was lost, the burden of proof is upon the claimant. And if Levi has not yet received the money, Reuven shall swear as a shomer chinam and is exempt, and if he received the money, they do not extract it from his hand. And the reason that before the receipt of the money he does not have the law of a shomer sachar is because the primary reason that a lender upon a mashkon has the law of a shomer sachar is because he is obligated to guard the mashkon and to shake it out at any time that the garment requires this, and when a poor person comes to ask him for tzedakah at this time, he is exempt from giving to him, because one who is occupied with a mitzvah is exempt from a mitzvah. And this is only after he received the money, but before this, it is nothing but a mere deposit which he guards for free, and it is not upon the shomer to shake it out, and the owner of the object shall come and shake it out if it is necessary [Tur section 34].

An incident occurred involving Reuven who pledged books to Shimon, and Shimon required funds and pledged them to Levi, and Levi knew that they belonged to Reuven. When Reuven came to redeem them, he found that they had been damaged in the possession of Levi. Levi said: "It is true that they decreased in value while with me because I studied from them, since Shimon gave me permission and to deduct a small amount from the debt for him; however, you are not my legal adversary, for I did not take them from your hand." The Rosh, of blessed memory, ruled that since he knew they did not belong to Shimon, he should not have used them without the permission of Reuven. Therefore, he is liable to pay Reuven for everything the books decreased in value through his study. And some say that even if Reuven gave permission to Shimon to study from them, nevertheless Levi is liable to pay, because he can say: "To Shimon I gave permission because I know that he does not cause damage through his study, but to you I did not give permission" [Levush]. And there are those who disagree on this, for even though Levi should not have studied from them without the permission of Reuven, nevertheless neither he nor Shimon is called negligent in this since he at least gave permission [Shach]. And if Levi did not know that they belonged to Reuven, he was not negligent at all, since Shimon gave him permission and he thought they belonged to Shimon. And Shimon is liable to pay the decrease in value according to the first opinion even when he gave Shimon permission to study from them, and according to the latter opinion when he did not give him permission. And in any case, even when Levi knew they belonged to Reuven, the choice is in the hand of Reuven to collect from whomever he wishes, from Levi or from Shimon, according to the law of one who robs and feeds another, where the victim of the robbery collects from whomever he wishes, as will be explained in siman 361 [Tur].

An heir who produced a shtar chov against Reuven, stating that his benefactor lent him such and such an amount of money and Reuven left a mashkon in the hand of his benefactor, even if it is not clarified in the shtar that there is a mashkon but the heir admits there was a mashkon [Shach], and the heir claims that he did not find the mashkon and perhaps it was lost through an ones from the hand of his benefactor and he claims the money, the shtar is void. The heir is not believed with a migo that he was able to deny the mashkon, for migo is not applicable here since the heir does not claim a certain claim that it was lost through an ones. It is not similar to all shtarot where the heir swears the oath of heirs when the borrower claims he paid the benefactor and takes from the borrower, for there the debt is certain and the payment is a doubt, but here the payment is certain since there was a mashkon, and the debt is a doubt whether the mashkon was lost through an ones or not. And if the heir claims with certainty that it was lost through an ones, the heir swears that it was lost through an ones and collects his debt just like the lender himself if he were to claim so, as has been explained in section 25, and specifically when the borrower does not deny him with certainty as has been explained there. And if the heir claims that he returned the mashkon to him and the borrower denies him, the borrower swears a shevuat hesset and is exempt. And one cannot say that the heir is believed with a migo that it was lost through an ones, for even in the case of being lost through an ones, if the borrower denies him, he swears and is exempt as has been explained there. However, when the mashkon is not clarified in the shtar, one could say that the heir is believed with a migo that he could have said there was no mashkon at all. However, there is one who says that a claim of returning is a poor claim, for how would he return the mashkon to him without money, and it is like a migo in the place of witnesses; therefore the borrower swears a shevuat hesset and is exempt [Netivot HaMishpat].

Reuven left a mashkon in the hand of Shimon, and Shimon died and left minor children, and Reuven comes to redeem it from the hand of Shimon's heirs and Reuven says that it is pledged in their father's hand for fifty zehuvim, and the orphans say that their father said it was pledged for one hundred zehuvim: the fifty that he admits to he shall give immediately to the orphans, and the other fifty he shall leave in the hand of a third party until the orphans grow up and swear the oath of heirs, if Reuven claims that they must swear. And specifically if they are clever and understand the matter; but if they are very small, they do not swear even when they grow up, for it is not applicable that they should swear the oath "that our father did not command us," since for those who are very small, it is not applicable that he would command them. And even though it will be explained in siman 108 that every minor orphan who grew up does not need to swear this oath, nevertheless, if they are minors who have reached the level of understanding and they are clever, they shall swear, for it is possible that their father commanded them [Bach]. Therefore, if they are not of understanding, he is compelled to pay them one hundred zehuvim. And if there is an apotropus whom their father appointed, he must swear that one hundred is due upon the mashkon, as is written there. But when their father did not appoint an apotropus, but rather the relatives deal with the needs of the orphans, the relatives do not have to swear even though they act according to the beit din. And specifically when the minors claim with certainty; but if they do not know for how much it is pledged, we do not claim on their behalf that perhaps it is pledged for more, for the lender upon a mashkon has upon it only a mere lien, and we do not extract from a person based on a claim of doubt [Shach]. And the borrower shall swear a shevuat hesset that only fifty is due. And specifically when they want to collect from the mashkon; but if they only want to hold onto the mashkon and the borrower requests to return his mashkon to him, then even if they do not know for how much it is pledged, we claim on their behalf that perhaps more is due, for regarding the lien they are the possessors and we claim on their behalf even with a claim of doubt [Netivot HaMishpat]. And if the orphans are adults and claim with certainty that one hundred is due, they swear the oath of heirs and take. And if they do not wish to swear, the borrower shall swear a shevuat hesset and pay fifty [it appears to me]. In what case does this apply? When the mashkon is of items that are not typically lent or rented out; but when it is of items that are typically lent or rented out and they saw the object in their hand, such that they do not have a migo of "I returned it," he pays only fifty, and even if the mashkon is worth more, for he is believed with a migo that he could have said that he lent it, for items that are typically lent or rented out where witnesses saw the object, we extract even from the orphans. But if witnesses did not see the object in their hand, then if they claim with certainty that one hundred is due upon it, we do not compel the orphans to show the object. And if they claim perhaps more is due upon it and the borrower has witnesses who recognize the object with clear recognition when they see it, and the borrower gives a sign on it and the beit din sees that this sign corresponds with the sign of the object found with them, they command the orphans to produce the object and the witnesses shall see it. And if they recognize it with clear recognition, the borrower is believed with an oath. And if he does not give a sign, we do not compel the orphans to produce it and show it. And certainly when he does not have witnesses who recognize the object with clear recognition but only match some sign, we do not rely on this to extract it from the possession of the orphans, and they are believed up to the value of the object, for a sign on an object is nothing to extract it from his possession, only clear recognition. And so too in all the signs that we explained that "he saw" means he has no migo, it means that they saw and recognized with clear recognition this object. And certainly if his name is written on the object, which is better than clear recognition, if it is only typically lent or rented out [Urim VeTummim and Netivot HaMishpat]. And all this is when the mashkon is worth one hundred; but if it is not worth that much, the borrower in any case only has to pay up to its value, and on the remainder he shall swear a shevuat hesset when the orphans claim with certainty, and if they claim perhaps, he does not swear at all.

The mashkon of an Israelite in the hand of a ger [in ancient times], and the ger died and has no heirs in the manner that will be explained in siman 275—that his property is ownerless and anyone who seizes it acquires it—and someone came and seized the mashkon, we remove it from his hand and return the mashkon to its owner. For since he died, his lien was extinguished, and there is no distinction between whether he took it as a mashkon at the time of his loan or not at the time of his loan, for the lender always has only a mere lien upon it [Urim VeTummim].

And such is the law if he has a deed of mashkona on the land of an Israelite and the land is held in his possession, and he died, and another Israelite came and took possession of it, he has done nothing; for as soon as he died, his lien expired, and it stands in the domain of the original owners. Even when it was a mashkanta for a set time and in a place where they do not remove him until the time [expires], such that within this time it was like a sale, and he died within the time, nevertheless it stands in the domain of the original owners [Bach], for despite this, the lender has only a lien.

An Egyptian who lent to an Israelite upon a mashkon, and it fell from him and another Israelite found it, he is obligated to return it to the borrower because the body of the mashkon is his, and the lender had nothing upon it but a lien, and once it fell from him, his lien was extinguished. And even when the finder says, "I wish to sanctify the Name of Heaven," he can say to him, "Sanctify with your own and not with that of others." But money that he lent to the Egyptian and it fell from him and another found it, he is not obligated to return it to the lender, for money is given for expenditure and has already left the possession of the lender. And some say that even regarding a mashkon, it is specifically when it is worth more than his debt, for in this case it is still the borrower's; but if the mashkon was forfeited into the hand of the lender, such as where interest accrued upon it until it is not worth the principal and the interest, it is entirely no longer the borrower's and the one who found it has acquired it [Sma]. And so too the opposite regarding money: if it has not yet left the possession of the borrower, he is obligated to return it to him [Shach], such as where he sent it by agency to pay the Egyptian, as written in siman 183, see there. [And the words of our teacher, the Beit Yosef, in section 38 are perplexing, and the Tumim wrote that he holds that before use he has not acquired it, and this is the intent of the Gra in subsection 169, and this is a greater novelty; and in my humble opinion it appears that it deals with a case where he had not yet received the mashkon from the borrower, and his intent was not to transfer ownership until the receipt of the mashkon, and delve into this].

The collateral of those who were explained to be in the hand of an Israelite and they died, and another came and took possession of it, the holder of the collateral acquires corresponding to his money that the debtor owed him, and the one who took possession acquires the remainder. In what case are these words said? When the collateral was in a courtyard that is not guarded and also the lender was not in his courtyard at the time of the debtor's death, for therefore the entire collateral was not acquired by him through the acquisition of a courtyard. But when it was in a guarded courtyard or the lender was in his courtyard, his courtyard acquired for him the entire collateral, as will be explained in siman 268.

The mashkon of an Egyptian is in the hand of an Israelite, and he said to the borrower, "Give me my money," and the Egyptian replied to him, "Go and pledge it with another Israelite," or the lender himself pledged them with another Israelite and received from this Israelite the money that the borrower owed him, and the lender died and the mashkon is worth more than the debt, the second one has merited the entire mashkon; for since he received his money from the second, the first no longer has any connection and is removed from the mashkon [Shach and Taz]. And such is the law regarding the mashkon of a ger [in ancient times] who has no heirs. But if the first did not manage to deliver it to the other by the command of the borrower before the borrower died, the first has merited that which is in his hand and does not need to give anything to the other, for he did not perform a meshikhah and did not take money from him, rather the borrower commanded to deliver the mashkon to him, and since he did not manage to deliver it to him until the borrower died, through what did the second acquire? And in what has been explained, there is no difference whether he lent with ribbit or not [Shach]. And if the borrower was indebted to another Israelite, it will be explained in siman 86 if he can collect from a mashkon that this Israelite lender possesses, see there [see Sma subsection 116].

Our teacher, the Beit Yosef, wrote in section 41: If a pledge of an Egyptian was in the hand of Reuven, and Reuven deposited it in the hand of Shimon, and the Egyptian died, there is a doubt whether Shimon has acquired the amount by which the pledge exceeds the debt. Thus far his words. And his source is from the Mordechai [the third chapter of Bava Batra and the Hagahot Maimoniyot, the second chapter of Zechiyah, letter 10]. And the doubt is whether we say that Reuven only has a lien to the extent of his debt, and Shimon pays him his debt and the remainder is his; or perhaps since he comes by the power of Reuven, everything belongs to Reuven. So it is explained there. And many of our teachers, the Acharonim, wondered at this, for what doubt is there here? For behold, it does not belong to Reuven, it is only encumbered to him, and it is obvious that Shimon acquired the surplus [Yam Shel Shlomo, Bava Kamma, chapter 5, siman 20]. And behold, even if the pledge were in the courtyard of Reuven, another is able to seize the surplus over the pledge, as is written in section 65, and all the more so when it is in the domain of the other [Shach, subsection 163, and the Gra, subsection 176]. And there is one who wished to answer that by reason of the expropriation of his loan, it is possible to say that Reuven acquired it [Urim VeTumim], but it is impossible to say so at all [Netivot HaMishpat]. And there is one who wished to answer that it deals with a loan of interest, and Reuven can say that as long as the borrower does not redeem it, I will calculate interest upon it until my debt rises to more than its value [ibid.]. And this is even more wonderous, for if so, the law explained in section 65 is only in a loan of gemilut chasadim, and it is impossible to say so. Furthermore, for behold, they explained the reason for the doubt because Shimon comes by the power of Reuven, as I have written, and besides that the reasoning is not clear at all. And in my humble opinion, the matter seems simple: that Shimon, who received the deposit from the hand of Reuven and placed it in a guarded place, it is as if he transferred this place to Reuven. Therefore, even though the domain of Shimon acquired this object, nevertheless, behold the place where the object is lying belongs to Reuven. And if Shimon wants to acquire it by side of his domain, behold he comes by the power of Reuven who handed over to him the place where his deposit should be placed. And in section 65, even though it is lying in the domain of the lender, nevertheless it is lying in a place that is not guarded and he is not standing beside it, for there is no kinyan here at all as is written there. But here, it is lying in a guarded place, and the place, even though it belongs to the bailee, behold he transferred it to the depositor, as is written in siman 241, section 2; see there.

An incident occurred involving Reuven and Levi who were partners, and Reuven held collateral belonging to Shimon. Shimon died, and his heirs claimed the collateral. Reuven claims: I am seizing them because Levi, my partner, told me that Shimon owes him from the partnership funds, and Levi wants to swear that this is so. And they say that since they are partners, the seizure of Reuven is like the seizure of Levi, and his hand is like his hand in the business of the partnership, and Levi can swear as if he were seizing them. The Rosh, of blessed memory, ruled that Levi cannot swear regarding this, for certainly if Reuven himself claimed that Shimon owed him, he would be believed with a migo of "the matter never occurred" or "I returned them." But since Reuven himself does not know if the matter is true, and the collateral is not in the hand of Levi, there is no migo here, for perhaps Reuven would not want to lie and say "the matter never occurred" or "I returned them." But if Reuven also knows that Shimon owes the partnership and claims so, certainly he can seize them [see Shach, subsection 158]. And such is the law when one gave a deposit to Reuven and Shimon, and when he claimed his deposit from them, Reuven replied: I spent such and such expenses according to your letter. And similarly Shimon claims that he spent expenses on his own, besides the expenses of Reuven, and also according to his letter, and the letters are not with them; if both of them know of the expenses of both of them, even the one who does not have the deposit in his hand is believed. But if they do not know of each other, only the one who has the deposit in his hand is believed, and the other is not believed because of the migo of this one. And the main point depends on whether the one who has the deposit in his hand knows of the expenses of the second. And all this is when there is a migo in any case, but when there is no migo, such as when there are witnesses that it was handed over before them and eyewitnesses, certainly even the one who has the collateral in his hand is not believed, as I have written several times in this siman.

One who holds the land of his fellow and consumes its fruit, and claims that he descended into it via a mashkona and that he had a document for one hundred dinars that he lent upon this and now the document is lost from him, and the owner of the land claims it was only fifty: if the lender did not hold it for the years of chazaka, the borrower is believed, for land remains in the chazaka of its owners, and he is not believed to say it is purchased in his hand as is the case with movables. The borrower shall swear a shevuat de'oraita, and this is not like one who swears regarding land, as will be explained in siman 95, that one does not swear a shevuat de'oraita regarding them; for since the land is in the chazaka of the borrower and both of them admit that it is a mashkona, his claim is like any monetary claim, and he is one who admits to a part of the claim and is liable for a shevuat de'oraita. However, if the lender held it for the years of chazaka, he is believed with a shevuat hesset. And even though regarding other mashkona the lender must swear a severe oath while holding a sacred object by the enactment of the Geonim, as I wrote in section 33, nevertheless, since there is no shevuat de'oraita here because he held it for the years of chazaka and one does not swear a shevuat de'oraita regarding lands, therefore even the Geonim did not enact this, for they only enacted it regarding movables [Shach]. Therefore, a shevuat hesset is sufficient, and he takes one hundred from the land that he consumes with a nekhita as he presumably stipulated [Netivot HaMishpat]. And there are those who say that the enactment of the Geonim applies even to land [Ra'avad].

One who lends to his fellow on a mashkon and he repaid him, and said to him: "Give me my mashkon," and the lender said to him: "Go now and come tomorrow and I will return it to you," and the mashkon was stolen—if it was stolen before the time he set for him to come and take it, the lender is liable according to that opinion at the beginning of the siman that he is a shomer sachar; for even though he received the money, nevertheless, since he has not yet returned it to the borrower, he must guard it as before. And if it was stolen after the time he set for him, he is exempt, for from then on he is only like a shomer chinam, as it is only a pikadon in his hand like all pikadonot. But a shomer chinam at least he is, and he cannot say: "I do not wish to be a shomer at all, and you should have taken it," for since he did not hand it over to him at the time of repayment, he must of necessity be at least a shomer chinam and be liable for negligence [it appears to me from the words of our teacher, the Tur, and the Shulchan Aruch, section 43 in the Hagah]. Therefore, if the borrower has witnesses that he came at the time set for him and he did not give it to him, he is liable for theft. And if there are no witnesses, the lender shall swear a shevuat hesset that he did not come at the time set for him and be exempt. And even though the borrower came afterward and requested the mashkon and the delay was on the part of the lender, nevertheless, after this time he is only a shomer chinam, since he already received his money and he did not come to take it at the time set for him [Sma]. And according to what we explained at the beginning of the siman, that it is a legal doubt and the lender is not a shomer sachar except against his money, and since he already received the money, it follows that even within the time he set, his status is only that of a shomer chinam, and there is no practical difference at all in this law. And it is a simple matter that if the lender gave him the mashkon and he did not want to receive it and said: "Let it be placed with you until I receive it," the lender is not even a shomer chinam unless he answered him explicitly: "Let it be placed with me until you receive it." And see in siman 291, section 20, what we wrote there [it appears to me].

Reuven who had a mashkon in the hand of an idolater who lends with ribbit, and Shimon needed money and requested from Reuven that he give him permission to borrow from that lender upon his mashkon, and he gave him permission and he borrowed upon it, and afterwards the mashkon was burned in the hand of the lender, Shimon is exempt from paying Reuven the value of the mashkon according to the money he borrowed; for even without his loan, Reuven would have lost it entirely since it was burned. And even though through this Shimon profits, nevertheless, what does Reuven have in this since he did not lose because of this? And this is if according to their laws the lender does not pay the excess over the debt when the mashkon is burned. But if according to their laws he pays, it is simple that Shimon pays Reuven, for behold he loses because of him, and it is even greater than garmi [it appears to me]. And all this is according to the law, but nevertheless it is proper for the beit din to strive to make a compromise; even though according to the law Shimon is not obligated to pay when he does not lose because of him, nevertheless, since he profited through Reuven's mashkon, he must compensate him beyond the letter of the law. And similarly wrote the Maharam Alshich in a teshuvah. And so too in all the many matters that were explained in this siman that involve many oaths, that it is proper to strive and find a compromise, and it is a mitzvah to arbitrate, and particularly in a place of an oath.

The borrower cannot say to the lender, "Take the משכון for your debt," and he is obligated to pay him money even if he borrowed from him without a שטר. There is no distinction in this whether the משכון is worth the amount of the debt, or less than this, or more than the debt, for he lent him money and the משכון is merely for security. This is unless the borrower has no money; then he is forced to accept the משכון if it is worth the amount of his debt, and if not, he shall complete it for him from other מטלטלין, as will be explained in סימן 101, see there.