THOUGHTS ON THE DAILY DAF
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Bava Metzia, 115
BAVA METZIA 112-115 - these Dafim have been dedicated anonymously l'Iluy
Nishmas Tzirel Nechamah bas Tuvya Yehudah.
1) ENTERING THE HOUSE OF A BORROWER'S HEIRS
OPINIONS: The Gemara derives from the verse, "You shall not enter *his
house* to forcefully take a collateral" (Devarim 24:10), that the lender is
prohibited from entering only the borrower's house, but he is permitted to
enter the house of the borrower's guarantor ("Arev"). Does the verse also
exclude entering the house of the borrower's heirs to collect a Mashkon?
2) TRANSFORMING A DIFFERENT DEBT INTO A FORMAL LOAN
(a) The MINCHAS CHINUCH (end of #585) suggests that just as the Gemara
infers from the verse the right of the lender to enter the guarantor's
house, so, too, we may infer that the lender is allowed to enter the house
of the borrower's heirs in order to take a collateral for their father's
debt. The Minchas Chinuch enumerates various other situations in which the
mobile objects (Metaltelin) that the heirs inherited are Meshu'abad to the
lender (as exceptions to the normal rule that says that the Metaltelin of
heirs are not Meshu'abad to their father's debts). One example is the
Takanas ha'Ge'onim (as cited in Shulchan Aruch CM 107:1), in which the
Ge'onim instituted that a creditor may collect from the Metaltelin of the
heirs. In such a case, asserts the Minchas Chinuch, one may forcefully take
an object as collateral from the heirs since the Torah only prohibits
entering the house of the borrower himself.
The Gemara (beginning of 115a) says that after the lender takes an object of
collateral from the borrower, the lender acquires it for himself to a
certain degree, such that even when he returns it to the borrower each day
as the Torah requires him to do, it still remains the possession of the
lender (and it is merely a Pikadon in the hands of the borrower). Thus, even
when the borrower dies, the object of collateral does not become Metaltelin
that belongs to the heirs ("Metaltelin d'Yasmi") which may not be collected,
but rather they are like a Pikadon of the lender which he may collect from
(b) The RAMACH (cited by the Shitah Mekubetzes, end of 114b) writes that in
such a case not only is the lender allowed to collect the object from the
heirs, but he is even allowed to forcefully enter their house. However, when
explaining *why* the lender is allowed to enter their house, he does not use
the reasoning of the Minchas Chinuch (who says that it is derived from the
verse which the Gemara quotes), but rather his reasoning is that since the
collateral already belongs to the lender, he is merely taking his own
object. This implies that he does *not* agree with the Minchas Chinuch, and
that he would prohibit the lender from entering the house of the heirs. (Y.
OPINIONS: The Gemara says that when a person owes someone money for working
for him or for renting something from him, his creditor may enter his home
to take an object of collateral. The Torah only prohibits entering a
debtor's home to take collateral for an actual Milveh, a loan, but not to
take collateral for moneys owed for other reasons. The Gemara adds, though,
that if the parties involved turned the debt into a loan ("Zakfan Alav
b'Milveh"), then it is *prohibited* to enter the debtor's home, because the
verse says, "When you lend to your fellow man *any type of loan* (Mashas
Me'umah), you shall not enter his house to forcefully take a collateral"
3) THE DEFINITION OF AN "ALMANAH"
The concept of "Zakfan Alav b'Milveh," transforming a different type of debt
(such as a credit debt due to a purchase) into a proper loan, appears
numerous times in the Gemara, and there are many significant Halachic
ramifications of such a transformation, such as the one mentioned by our
Gemara. What exactly constitutes an act of "Zakfan Alav b'Milveh?"
(a) The ROSH in Gitin (4:17) explains that "Zakfan" means that the *seller*
(creditor) decided to fix a definite date of payment by which the buyer
(debtor) must pay him. The fact that the debt now has a set date for payment
is what determines that it is now a proper loan as opposed to another type
(b) The MORDECHAI in Shevuos (8a, first column) writes that at the moment
that the seller writes in his book of debts the exact amount that the buyer
owes him, at that point it becomes an official loan and obtains all the laws
of a Milveh. Both of these opinions are cited by the REMA (CM 67:14). (Y.
OPINIONS: The Torah prohibits taking the garment of a widow as collateral
for a loan (Devarim 24:17). The Tana Kama of our Mishnah, and Rebbi Yehudah
in the Beraisa, prohibits taking a widow's garment regardless of whether she
is poor or which. Rebbi Shimon in the Beraisa, who expounds the reasons for
the Mitzvos, permits taking the garment of a rich widow, since one will not
need to return the garment to her each day and thus there will not be any
suspicion about them.
4) TAKING A "MASHKON" FROM AN "ALMANAH"
Who qualifies as a widow with regard to this Halachah? There are three
opinions in the Poskim (see TOSFOS REBBI AKIVA EIGER to the Mishnayos).
(a) The S'MA (CM 97:22) maintains that both a widow *and* a divorced woman
are included in the Torah's prohibition against taking an Almanah's garment
as a Mashkon, because neither one has a husband to provide her with moral
and financial support. A single woman who was never married and who is still
supported by her father is *not* included in this Isur, and a lender *may*
enter her home to take a Mashkon.
(b) The SHACH (CM 97:1) argues and asserts that the Isur applies exclusively
to a widow, a woman whose husband died. The reason why the Torah is
especially concerned for a widow and not for any other single woman is
because a widow's heart is broken because of her husband's death.
(c) The TAZ offers a third opinion and suggests that the Isur applies to
taking a Mashkon from *any* single woman. The reason the Torah refers only
to a widow is because most women would not be borrowing money, since their
husbands or fathers work and support them. Only a woman who is on her own,
such as a widow, needs to engage in business and to borrow money. Therefore,
the Torah refers to a widow when it prohibits taking a Mashkon from a woman,
but the Isur applies to any woman. (Y. Marcus)
OPINIONS: The Torah prohibits taking the garment of a widow as collateral
for a loan, as it states, "You shall not forcefully take as collateral the
garment of a widow" (Devarim 24:17). The Tana Kama of our Mishnah, and Rebbi
Yehudah in the Beraisa, prohibits taking a widow's garment regardless of
whether she is poor or which. Rebbi Shimon in the Beraisa, who expounds the
reasons for the Mitzvos, permits taking the garment of a rich widow, since
one will not need to return the garment to her each day and thus there will
not be any suspicion about them.
Does this Isur apply only to taking the widow's garment, as is written in
the verse, or does it apply to taking any object of the widow as collateral?
(a) The SHILTEI GIBORIM (#2) writes that the Torah prohibits *only* taking a
widow's garment or her sheets (which she needs to wear or to sleep on). It
is permitted to take any other object from her as collateral.
(b) REBBI AKIVA EIGER and the RASHASH say from the fact that none of the
Poskim (except the Shiltei Giborim) differentiate between a garment and any
other object, it seems that it is prohibited to take any object from a widow
as collateral. The Rashash says that, mid'Oraisa, only taking a garment is
Asur, while taking any other object is Asur mid'Rabanan.
(c) The SEFER HA'CHINUCH (#591) writes that one who takes *any* object from
a widow as collateral transgresses an Isur *d'Oraisa*. The MINCHAS CHINUCH
there (as cited by the D'VAR YAKOV) writes that the Chachamim had a
tradition that the Torah prohibits taking any object from a widow as
The Minchas Chinuch suggests that perhaps it depends on whether we follow
the view of Rebbi Yehudah or Rebbi Shimon. According to Rebbi Shimon, who
maintains that the Torah prohibits taking a Mashkon only from a poor widow,
because one must return the object to her each day and people will come to
suspect them of wrongdoing, it should be prohibited only to take her garment
(or sheets), which need to be returned to her each day for her to use. Other
objects, though, which she does not need each day, should be permitted to
take, since one will not need to return them each day to her. Rebbi Yehudah,
who maintains that the Torah prohibits taking a Mashkon from a widow even
when she is rich and the lender does not have to return the garment to her
each day, would also prohibit taking any other object from her as well.