Talmud - Shevu'ot 43b שבועות מ״ג ב׳

GEMARA: To which case is the final statement in the mishna, which says the creditor is the one who takes the oath, referring? If we say it is referring to the case in the latter clause of the mishna, where the debtor claims that the collateral was worth more than the loan, derive this halakha from the fact that the oath is anyway taken by the creditor, as he is the defendant in this case. The additional statement is superfluous.

In response, Shmuel says: This statement relates to the case in the first clause of the mishna, where the debtor is the defendant. And Rabbi Ḥiyya bar Rav similarly says that it relates to the first clause. And Rabbi Yoḥanan similarly says that it relates to the first clause.

The Gemara asks: What did the amora’im mean by: The first clause? The Gemara answers: They were not referring to the very first halakha in the mishna, but rather to the latter part of the first clause: There is a case of a creditor who claims: I lent you a sela on the basis of that collateral and it was worth a shekel. And the other individual, the debtor, says: That is not the case; rather, you lent me a sela on the basis of that collateral and the collateral was worth three dinars, i.e., three-quarters of a sela. In this case, he is liable to take an oath. As in this case, the oath should in principle be taken by the debtor, since he is the one who admitted to a part of the creditor’s claim, but the Sages removed the obligation to take an oath from the debtor and imposed it on the creditor, deeming him liable to take an oath that the collateral was not worth more than a shekel.

The Gemara notes: And now that Rav Ashi says that we maintain that two oaths are taken in this case, as this party, the creditor, takes an oath that the collateral is not in his possession, and that party, the debtor, takes an oath concerning how much the collateral was worth, this is what the mishna is saying: Who takes an oath first? The one in whose possession the deposit had been located, i.e., the creditor, first takes an oath that the collateral is not in his possession, lest this party, the debtor, take an oath and then the other party, the creditor, produce the deposit and prove the oath false.

§ Shmuel says: With regard to one who lent one thousand dinars to another and took from him the handle of a sickle as collateral, if the handle of the sickle is lost, the creditor has lost the entire sum of one thousand dinars, even though the lost collateral was worth less. But if he took two handles as collateral and only one of them was lost, the creditor does not lose the entire debt; he loses only the value of the handle that he lost.

And Rav Naḥman says: Even if he took two handles and only one of them was lost, he has lost five hundred dinars, i.e., half the debt. If the other one was then also lost, he has lost the entire debt. But if he took a handle and a piece of silver as collateral and then lost the handle, he has not lost half the debt, as he presumably relied on the silver, not the handle, for payment. The Sages of Neharde’a say: Even if he took a handle and a piece of silver, and the piece of silver was lost, he has lost half the debt. If the handle was then lost, he has lost the entire debt.

The Gemara challenges Shmuel’s opinion based on the mishna. We learned in the mishna: There is a case of a creditor who claims: I lent you a sela on the basis of that collateral and it was worth a shekel. And the other individual, the debtor, says: That is not the case; rather, you lent me a sela on the basis of that collateral and the collateral was worth three dinars, i.e., three-quarters of a sela. In this case, the debtor is liable to take an oath. According to Shmuel’s opinion that if the collateral is lost, the debt is canceled, let the debtor say to him: You have already received repayment of the debt by means of the collateral.

The Gemara answers: The halakha in the mishna is with regard to a case where the creditor stated explicitly that he is taking the collateral only to assure payment of the value of the item, and not as full repayment. Therefore, since there is a dispute with regard to the collateral’s monetary value, the two parties must litigate this matter. Shmuel, by contrast, was referring to a case where the creditor did not state explicitly whether he was taking the collateral to cover only its monetary value or the entire debt. In that case, it is presumed that he took it to cover the entire debt.

The Gemara suggests: Let us say that Shmuel’s ruling is the subject of a dispute between tanna’im, as it is stated in a baraita: With regard to one who lends money to another on the basis of collateral, and the collateral was lost, he must take an oath that it was in fact lost and may then take his money; this is the statement of Rabbi Eliezer. Rabbi Akiva says that the debtor can say to the creditor: Didn’t you lend me the money only on the basis of the collateral? Since the collateral was lost, your money is lost as well.

But with regard to one who lends another person one thousand dinars with a promissory note, and in addition to the note, the debtor left collateral in the creditor’s possession, all agree that since the collateral was lost, his money is lost as well. Since he had a promissory note as proof of the loan, the collateral was clearly taken as potential repayment.

The Gemara asks: What are the circumstances under which Rabbi Eliezer and Rabbi Akiva disagree? If it is a case where the collateral was worth the amount of money that he lent to him,

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

Shevuot 43b examines who bears the oath obligation in creditor-debtor disputes over collateral value, weighing single versus double oath requirements.