Mishneh Torah, Hiring 10-12

Sugya Map

• Issue: The legal status of a lender who takes security (משכון) for a loan, and the resulting liability for the security if it is lost or damaged.
• Nafka Mina: Determining whether the lender is considered a paid bailee (שומר שכר) or an unpaid bailee (שומר חנם), and thus the extent of their liability. This also extends to other forms of reciprocal arrangements and professions.
• Primary Sources:
  • Mishneh Torah, Sefer Nezikin, Hilchot Mechira, Chapter 10, Halachot 1-12.
  • Mishneh Torah, Sefer Nezikin, Hilchot Shmirah, Chapter 1:1-4 (implicitly referenced by Rambam's comparison to paid bailees).
  • Talmud Bavli, Bava Metzia 93b-94a, 107a-b.
  • Talmud Bavli, Kiddushin 13a-b, 54b.
  • Talmud Bavli, Shevuot 47a-b.
  • Talmud Bavli, Pesachim 112a-b.
  • Talmud Bavli, Bava Kamma 100b-101a.

Text Snapshot

Mishneh Torah, Hilchot Mechira 10:1:

הַמַּלְוֶה אֶת חֲבֵרוֹ עַל הַמַּשְׁכּוֹן וְכוּ', הֲרֵי זֶה שׁוֹמֵר שָׂכָר. (He who lends to his colleague on security, etc., behold, he is a paid watchman.)

• Dikduk/Leshon Nuance: The phrase "וְכוּ'" (etc.) indicates that this is not an exhaustive list of scenarios covered by the principle, but rather a representative example. The term "הֲרֵי זֶה" (behold, this one) is a strong declarative statement, establishing a legal status unequivocally.

Mishneh Torah, Hilchot Mechira 10:1:

וְאִם אָבַד הַמַּשְׁכּוֹן אוֹ נִגְנַב, חַיָּב לְשַׁלֵּם כְּדִין שׁוֹמֵר שָׂכָר. (And if the security is lost or stolen, he is obligated to pay according to the law of a paid watchman.)

• Dikduk/Leshon Nuance: The repetition of "חַיָּב" (obligated) reinforces the severity of the lender's responsibility. The phrase "כְּדִין שׁוֹמֵר שָׂכָר" directly links this situation to the established laws of bailees.

Mishneh Torah, Hilchot Mechira 10:1:

וְאִם אָבַד בְּמִיתַת שָׁמַיִם, כְּגוֹן שֶׁנִּטְּלוֹ בִּלְסְטֵיס מְזֻיָּן אוֹ כַיּוֹצֵא בּוֹ, יִשָּׁבַע שֶׁנֶּאֱנַס, וְיִפְרַע הַלּוֶֹה חוֹב לָכֹל הַפְּרוּטָה. (And if it was lost by an act of Heaven, such as it was taken by armed thieves or the like, he must swear that it was lost due to forces beyond his control, and the borrower must repay his debt to the last prutah.)

• Dikduk/Leshon Nuance: "מִיתַת שָׁמַיִם" (death of Heaven) is a classic euphemism for unavoidable accidents or acts of God. "בִּלְסְטֵיס מְזֻיָּן" (armed thief) specifies a level of force majeure that absolves the bailee of liability, provided he swears to its occurrence. The final clause emphasizes the full repayment of the debt, even for the smallest unit of currency.

Readings

Ohr Sameach on Mishneh Torah, Hiring 10:1:1

The Ohr Sameach grapples with the underlying reason why a lender holding security is considered a shomer sachar. He cites the Gemara (Bava Metzia 93b) attributing it to the benefit (הנאה) the lender derives from being freed from the obligation of giving charity (צדקה) by lending the money. This benefit, even if not directly from the object itself, is seen as akin to receiving wages.

He then addresses a Tosafot (Bava Metzia 94a, s.v. d'noseh) which questions this reasoning: if a noder (one who vows to abstain from a benefit) is permitted to immerse in a ritual bath for a mitzvah, why isn't this benefit considered shomer sachar? The Ohr Sameach suggests a distinction: the benefit derived from avoiding charity is not a direct enjoyment of the object itself, but rather an indirect consequence of acting on behalf of another's property. He likens it to scaring away a lion from another's property – the action is beneficial, but not derived from the property itself.

However, he refines this, stating that when the obligation (חיוב) originates from the other party (e.g., returning a lost item, or the necessity of lending because of the security), then the ensuing benefit (like avoiding charity) is indeed considered shomer sachar. In contrast, if the obligation is inherent to the person (like sounding the shofar or immersing in a mikvah), and the object merely facilitates the fulfillment, the benefit is not considered shomer sachar. This is because the obligation is on the person, and the object is merely a means to fulfill it.

He further analyzes the case of a borrower who is spared from giving charity because of the loan, and whether this applies to one who takes pleasure (הנאה) from a borrowed item for a mitzvah. He suggests that if the enjoyment is indirect, it might not be considered shomer sachar. He also notes that Rashi's view that a security worth less than a perutah is not considered shomer sachar is difficult, as the mitzvah of lending is performed regardless of the security's value. He proposes that perhaps the mitzvah of lending itself, which frees one from charity, is the source of the shomer sachar status, and this only applies if the security is substantial enough to be considered a proper pledge.

Shorshei HaYam on Mishneh Torah, Hiring 10:1:1

The Shorshei HaYam delves into the complex question of whether a lender holding a mashkon (security/pledge) is considered a shomer chinam or shomer sachar, particularly regarding losses from unavoidable events (onesim). He cites the Shach (Choshen Mishpat 72, sk 9) who relies on Rashi's view that a mashkon taken after the loan is also considered shomer sachar. However, the Shach then offers his own analysis, arguing that even according to those who disagree with Rashi on onesim, the lender has a form of ownership (kinyan) over the mashkon. This kinyan allows him to use it for certain purposes, like betrothing a woman, and it is not affected by shemittah (the Sabbatical year). This partial ownership, they argue, means the lender is not fully responsible for onesim because the loss is not entirely his.

He then explores the debate on whether a lender can use the mashkon to betroth a woman. While some argue that the lender has a form of kinyan for this purpose, others contend that since the borrower can still redeem the pledge, the lender's ownership isn't absolute. This leads to the conclusion that for onesim, the lender is not fully liable, as the benefit is not entirely his.

The Shorshei HaYam also examines the source of the lender's responsibility. He discusses the verse "ולך תהיה צדקה" (to you shall be the charity), suggesting that the lender's responsibility for onesim might stem from the idea that the pledge is considered charity for the borrower. However, he questions this, as the pledge is still rightfully the borrower's.

He addresses the contention of the Tosafot that if the pledge is not fully owned by the lender, he cannot use it to betroth a woman. He argues that even a partial ownership or lien is sufficient for betrothal. He also tackles the difficulty raised by Tosafot regarding the difference between taking a pledge at the time of the loan versus afterwards, and how this affects the shomer sachar status. He suggests that when the pledge is taken after the loan, it is clearer that the intent is for repayment, giving the lender more ownership.

Finally, he delves into the concept of gilgul shvu'ah and the special leniencies for workers when it comes to oaths. He concludes that the underlying principle is the lender's partial ownership, which is not absolute but significant enough to incur certain responsibilities.

Friction

The core friction in this sugya lies in defining the precise nature of the lender's possession of the mashkon (security). Is it merely custody, or does it constitute a form of ownership that alters his liability?

The Strongest Kushya: The Mishneh Torah states that a lender who takes security is considered a shomer sachar (paid bailee) and is liable for loss or theft. However, the Gemara (Bava Metzia 93b) derives this status from the lender's benefit of being freed from the obligation of giving charity. This implies that the liability is tied to the benefit derived from the loan and the security, not necessarily absolute ownership. Yet, the text also states that if the security is lost due to forces beyond his control (like armed robbers), the lender must swear, and the borrower still owes the debt. This seems to contradict the full liability of a shomer sachar, who is typically liable even for such events unless specifically exempted (like an ones with an oath). If the lender is fully responsible as a shomer sachar, why is the borrower still obligated to repay the entire debt when the security, which was meant to secure the debt, is lost due to forces beyond the lender's control?

The Best Terutz (or two):

1. The Dual Nature of the Mashkon: The security has a dual role. Firstly, it acts as collateral, guaranteeing the repayment of the loan. Secondly, its presence frees the lender from a potential obligation to give charity. The shomer sachar status is primarily derived from this second aspect – the benefit of avoiding charity. Therefore, when the security is lost due to onesim (acts of Heaven), the lender fulfills his obligation to swear that it was an unavoidable loss. While the shomer sachar liability for negligence or theft is lifted, the collateral itself is gone. The debt remains because the security was merely a means to ensure repayment; its loss does not erase the underlying debt itself. The borrower still owes the money, as the loan was given independent of the security's ultimate fate. This is supported by the principle that a debt is not extinguished simply because the collateral is lost, especially when the loss is not due to the lender's fault.

2. The Concept of Partial Ownership and the Lender's Oath: The lender is not an absolute owner of the mashkon. The borrower retains the right to redeem it by repaying the debt. The shomer sachar liability arises from the possession and the benefit derived. When the loss is due to forces beyond his control, the lender takes an oath to demonstrate he was not negligent. This oath absolves him of the financial responsibility for the lost security. However, the debt itself was never contingent on the continued existence of the security. The security was a means to ensure the debt's repayment, not its cancellation. Therefore, the borrower must still repay the debt, as the original obligation remains. The oath allows the lender to escape the financial burden of the lost security, but it doesn't magically restore the security for the borrower or discharge the debt. The borrower's obligation is to repay the loan; the security was a separate arrangement to facilitate this.

Intertext

• Bava Metzia 93b: The Gemara discusses the case of a borrower who pledges an item as security. It concludes that the lender is a shomer sachar due to the hana'ah (benefit) he derives from being freed from the obligation of giving charity. This is the foundational source for the sugya, establishing the principle that the benefit derived from holding the pledge, even if indirect, renders the holder a paid bailee. The discussion then branches into various scenarios of reciprocal agreements and their implications.
• Shulchan Aruch, Choshen Mishpat 72:1: The Shulchan Aruch codifies the Mishneh Torah's ruling: "If one lends to his colleague on security, he is considered a paid bailee." This demonstrates the enduring relevance and application of Rambam's position in later halachic discourse. The Shach and Turei Zahav commentaries extensively discuss the nuances of this law, debating the exact nature of the lender's liability and ownership over the pledge, mirroring the complexities found in the Rambam and the Gemara.

Psak/Practice

The Mishneh Torah establishes a clear default: a lender holding security is a shomer sachar. This means they are responsible for the security and must compensate the borrower if it is lost or damaged due to negligence or theft. However, if the loss is due to unavoidable circumstances (onesim), the lender can be absolved by taking an oath, provided the borrower repays the full debt.

In practice, while the principle of shomer sachar for a lender holding security is firm, the practical implications are often mitigated by explicit stipulations in loan agreements. Parties can contractually alter the default liability. For instance, an agreement might specify that the lender is only responsible for gross negligence, or that the borrower assumes the risk of loss due to unavoidable events. Such stipulations are generally upheld, as long as they don't contravene fundamental prohibitions. However, the underlying principle remains that holding security imposes a significant level of responsibility on the lender.

Takeaway

Holding security for a loan transforms the lender into a paid bailee, responsible for its safekeeping, unless the loss is an unavoidable act of Heaven, in which case an oath absolves them, but the debt remains due. This principle underscores the weight of responsibility that comes with securing a debt, balancing the lender's protection with the borrower's continued obligation.