י״ט בטבת ה׳תשע״ז (January 17, 2017)

Bava Metzia 113a-b: The Rules of Collateral

Our Mishna discusses the practice of taking a mashkon – collateral, an object that serves as a guarantee – on a loan. The Torah teaches (Devarim 24:10-13) that a lender cannot enter the borrower’s house to take a mashkon, rather he must wait outside for the borrower to bring it out to him. Furthermore, if the borrower is poor and the object is one that he needs, the lender must return it to him when he needs it. The Mishna specifies that if the guarantee is a pillow, it must be returned at night; if it is a plow it must be returned during the working day.

It appears that there are several different kinds of “loan guarantees.” When the two parties agree to a mashkon at the time of the loan, none of these rules apply, and it need not be returned until the loan has been paid. Another type of “guarantee” occurs when the time for payment has passed and the lender takes something that belongs to the borrower as payment – or to pressure the borrower to pay. According to Rabbeinu Tam and the Ra’avad, in this case, as well, the mashkon need not be returned until the loan is paid. Our Mishna is discussing a different case – when the mashkon is taken at some point during the period of the loan to act as a “reminder” that the loan will come due and will have to be paid. In such a case, as the Mishna teaches, the mashkon can only be taken under the supervision of the  and it will have to be returned to the borrower when needed.

Both the amora’im and the rishonim present the obvious question. What point is there is having a “guarantee” of a loan if it must be returned whenever the borrower needs it? The Gemara points out that there are certain advantages to holding such a mashkon, e.g. should the Sabbatical year – which ordinarily erases such debt – occur, holding a mashkon would ensure that the loan remains in force and collectible. Furthermore, if the borrower dies, the holder of such a mashkon would not have to return it to the borrower’s children. Tosafot quote Rabbeinu Elhanan as offering another reason, as well. He suggests that the bother of retrieving and returning the mashkon on a regular basis would act to encourage the borrower to repay the loan as soon as it comes due.

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