Talmud - Pesahim 31a פסחים ל״א א׳

Or if the debtor consecrated the property, the creditor can come and redeem it through a symbolic payment to the Temple. As we learned in a mishna: The creditor may add an additional dinar to the amount of the loan and redeem this property. Although strictly speaking he need not redeem it, this payment was instituted so that it would not appear as though property were removed from the consecrated Temple jurisdiction without a payment. When they disagree is in a case when the creditor sold or consecrated the property in the interim between the giving of the collateral and the time the loan was due.

Abaye said: He retroactively acquires the collateral. Since the time arrived and he did not repay his loan, it has become clear retroactively that it was in the creditor’s jurisdiction at the outset. Therefore, he did well to consecrate or sell it. However, Rava said: He collects it from that point forward, since if the borrower had money he would remove the creditor’s lien with this money and the lender would not acquire the property. It is found that the creditor acquires the property now, at the time when the loan is due, and consequently he did not have the right to consecrate or sell it before this time.

Before bringing proofs for either side of this dispute, the Gemara attempts to clarify Rava’s position. Did Rava actually say this? A statement he makes in a different context appears to contradict the one made in his name here. But didn’t Rami bar Ḥama say: Reuven sold a field to Shimon with a guarantee that if the field is repossessed, Reuven will compensate Shimon for his loss. Shimon did not pay for the purchase, and instead set up the value of the field as a loan. In the meantime, Reuven died and a creditor of Reuven’s came to collect for a loan that Reuven had taken before he sold the field, as Reuven had no other land remaining, and he seized the land from Shimon, since it was mortgaged to this loan. And Shimon went and appeased the creditor with money so the creditor would allow him to keep this field.

By right, Reuven’s sons can come and say to Shimon that he must pay them the money that he owes for the field. And they are not required to pay Shimon if he demands compensation for the repossession of his field. They can say that our father left us movable property in your hands, i.e., the money you owe us for the field, and, as a general rule, movable property that has been left to orphans is not mortgaged to a creditor. The orphans can claim that the field belongs to Shimon, and as there is no land left for the orphans, there is no way for Shimon to recover the compensation that he is owed. The money he owes Reuven is considered movable property, and therefore he cannot recover his losses from these funds.

And Rava said with regard to this case: If Shimon is clever he will pay them what he owes with real estate and not with money. Since they now have real estate received from their father’s estate, Shimon can then collect the field from them as compensation for the original field that Reuven sold to Shimon. As Rav Naḥman said: When orphans collect real estate for a debt owed to their father from one person, another creditor can come and seize this land from them in order to repay the father’s debt.

The Gemara applies this discussion to our original case. Granted, if you say that a creditor collects retroactively, and the field is considered as though it belonged to the creditor from the time of the loan, due to this reason, he can then collect the money from them, because it is considered as though he collected it during their father’s lifetime. Because the field given by Shimon to repay his debt retroactively belonged to Reuven from the time that Shimon agreed to pay for the field, therefore Shimon can now claim this land from Reuven’s heirs. However, if you say that he collects it from this point forward, why can he then collect this land from them? It is as though the orphans purchased this property. And if orphans buy property, does it become indebted to a creditor of their father? Only property that belonged to the father can be seized in order to pay back his debt, and therefore Rava’s statement in the case appears to contradict his statement with regard to the transfer of ownership of collateral.

The Gemara resolves this contradiction: It is different there, in this case, as Shimon could have said to Reuven’s children that just as I am indebted to your father, so too, I am indebted to your father’s creditor. And this principle can be learned from the statement of Rabbi Natan that one who lends to one person and borrows from another can be considered as a middleman between his creditor and his borrower. As it was taught in a baraita, Rabbi Natan says: From where is it derived that when one lends one hundred dinar [maneh] to his fellow, and that fellow lends a similar sum to a third fellow, that we take the money from this one, the second debtor, and give it to that one, the first creditor, without going through the middleman, who is both the first debtor and the second creditor? The verse states: “And he shall give it to him whom he has wronged” (Numbers 5:7), which indicates that the loan should be repaid to the creditor to whom the money is ultimately owed. Therefore, payment is made to the original creditor regardless of the issue of retroactive acquisition of the collateral.

The Gemara proceeds to bring proofs for the two sides of the question of retroactive acquisition. We learned in the mishna: If a gentile lent money to a Jew, and the Jew gave him leavened bread as collateral during Passover, and after Passover the gentile attained this leavened bread in lieu of payment, then one is permitted to derive benefit from the leavened bread. The Gemara attempts to clarify this position: Granted, if you say that he retroactively collects this property, and the leavened bread was acquired retroactively by the gentile, it is due to this that one is permitted to derive benefit from it after Passover.

But if you say that he collects it from this point forward, then why should one be permitted to derive benefit from this leavened bread? The leavened bread was in the possession of a Jew during Passover, and therefore it should be forbidden. The Gemara answers: With what are we dealing here? With a case where he deposited [hirhin] the leavened bread with the gentile in his home, and since the leavened bread was in the gentile’s possession during Passover, it is considered as if it belonged to the gentile, provided the gentile ultimately retains ownership of the leavened bread when the Jew defaults on the loan.

The Gemara suggests: Let us say that this dispute is parallel to a dispute between tanna’im. As it was taught: If a Jew lends money to a gentile and the gentile gives him leavened bread as collateral, then the Jew does not commit any transgression after Passover. They said in the name of Rabbi Meir that he commits a transgression. What, isn’t it that they disagree about this, that one Sage, Rabbi Meir, holds that the Jew transgresses by owning leavened bread because he retroactively collects the leavened bread and has therefore owned it during Passover, and one Sage, who states that the Jew does not commit a transgression, holds that he collects it from this point forward, and therefore it was not considered to be in his possession during Passover?

The Gemara rejects this explanation: And how can you understand it that way? Say the latter clause of that baraita: However, if a gentile lends money to a Jew with leavened bread as collateral, then after Passover everyone agrees that he commits a transgression. However, if the preceding explanation is correct, it needed to state the opposite of what it said in the first clause, as the case in the latter clause is the reverse of that in the first clause. Namely, according to the one who said there, in the first clause of the baraita, that he does not commit a transgression, he should say that here, in this case, he does commit a transgression. And according to the one who said there, in the first clause of the baraita, that he does commit a transgression, he should say that here, in the latter clause, he does not commit a transgression. For if the creditor retroactively acquires the collateral, then it is as though it belonged to a gentile during Passover, and therefore the Jew would not have committed a transgression by owning it.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Pesachim 31a explores collateral rights when a debtor sells or consecrates pledged property, weighing Abaye's retroactive claim against Rava's forward-looking view.