Se alguém emprestou ao seu vizinho, [e chegou a hora e ele não o pagou], ele não pode se comprometer com ele [à força, mesmo no mercado], exceto por meio de [um mensageiro de] beth-din; e ele [o mensageiro de beth-din (e, é claro, o próprio credor)] não pode entrar em sua casa para cumprir sua promessa, como está escrito (Deuteronômio 24:11): "Lá fora você ficará". Se ele tinha dois navios, [sua dívida é contra ambos e ambos estão em garantia], ele pega um e devolve um [quando o outro precisa. Ele devolve e mantém o outro com ele, a saber:] Ele devolve o travesseiro à noite e o arado durante o dia. E se ele (o devedor) morre, ele (o credor) não retorna (o penhor) aos seus herdeiros, [não havendo mitsvá para devolvê-lo, está escrito (Ibid. 13): "Retorno você voltará para ele o penhor"—para ele, e não para seus herdeiros.] R. Shimon b. Gamliel diz: Mesmo para ele (o devedor), ele o devolve somente até trinta dias [o tempo de beth-din] e, a partir do trigésimo dia, é vendido em beth-din. [A halachá não está de acordo com R. Shimon b. Gamliel.] Uma promessa não é tomada de uma viúva, seja ela pobre ou rica, como está escrito (Deuteronômio 24:17): "E você não deve tomar como promessa a roupa de uma viúva." [Porque há alguém que sustenta que é uma viúva pobre de quem não é feita uma promessa, pois como você deve devolvê-la a ela, e ela vem e vai com você, você lhe dá um mau nome com seus vizinhos.—mas com um rico, a quem isso não se aplica, poderíamos pensar que uma promessa é feita; devemos, portanto, ser avisados do contrário, a saber: "Não farás o juramento de uma viúva" implica tanto uma viúva pobre quanto uma rica.] Se alguém toma um moinho como penhor, transgride um mandamento negativo, e ele é responsável (individualmente) por dois implementos, viz. (Ibid. 6): "Não se deve penhorar a pedra de moinho inferior nem a pedra de moinho superior". E não são apenas as pedras de moinho inferior e superior que foram interditadas, mas todas as coisas que são usadas para o processamento de alimentos, viz. (Ibidem): "pois é uma alma que ele toma como penhor".
Bartenura on Mishnah Bava Metzia
המלוה את חבירו – and the time arrived and he didn’t pay him back.
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English Explanation of Mishnah Bava Metzia
Introduction
The final mishnah of chapter nine discusses the laws concerning a creditor’s taking of a pledge from a borrower. A pledge is an object probably worth about the value of the loan. The borrower actually gives the pledge to the lender before receiving the loan. It is to be distinguished from collateral which does not go to the lender unless the borrower defaults on his loan.
There are three passages in Deuteronomy 24 concerning “pledges”. Verse 6 states: “Do not take a mill or an upper millstone as a pledge, for that would be taking someone’s life as a pledge”. In other words, since these two objects are necessary to produce food, a lender is prohibited from taking them. Verses 10-13 state two laws regarding pledges: 1) when one takes a pledge he must not enter the borrower’s house; 2) if the lender is poor the borrower may not keep his pledge overnight. The assumption here is that the pledge was a cloak in which the poor person will need to sleep. Verse 17 states, “Do not take the a widow’s garment as a pledge”.
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Bartenura on Mishnah Bava Metzia
לא ימשכננו – to take from him a pledge/security against his will and even in the marketplace, but rather via an agent of the Jewish court, who should take it from him with the permission of the Jewish court.
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English Explanation of Mishnah Bava Metzia
If one lent one’s fellow, he may exact a pledge from him only with the permission of a court, and he may not enter his house to take the pledge, as it is states, “You shall stand outside” (Deut. 24:1. The Torah states that when a creditor takes a pledge from a poor person he should not enter his house to collect the pledge. Entering his house would humiliate the borrower. The mishnah expands this prohibition to include any borrower, and not just one who is known to be poor. Furthermore, the mishnah demands that the pledge be taken with the consent of the court, probably to prevent creditors from unfairly seizing the property of their debtors.
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Bartenura on Mishnah Bava Metzia
ולא יכנס לביתו – even the agent of the Jewish court should not enter into his house, and all the more so, the creditor himself.
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English Explanation of Mishnah Bava Metzia
If the borrower had two utensils, he may take one but must give back the other. And he must give back the pillow at night and the plow during the day. The Torah states that a creditor may not keep overnight something that the borrower will need during the night, for instance a cloak in which he sleeps. The mishnah states that if the borrower had two such cloaks, and both were taken as a pledge, the creditor need only return one. The Torah discusses only a cloak which is essential to the borrower at night; one that is not essential may indeed be kept overnight. The mishnah adds that a creditor must return during the day items which are essential during the day, such as a plow. According to the mishnah the example in the Torah is just an example, one that sets up a paradigm demanding that the creditor only keep a pledge at a time when the pledge is not needed by the borrower. The Torah’s law is not limited just to the case of a cloak.
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Bartenura on Mishnah Bava Metzia
היה לו שני כלים – and his liability corresponds to both of them and he gave both as a pledge.
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English Explanation of Mishnah Bava Metzia
And if the creditor dies he need not return the pledge to his heirs. Rabban Shimon ben Gamaliel says: “Even to the debtor himself he need only return the pledge within thirty days [of the loan], and after thirty days he may sell it with the consent of the court. If the borrower should die the creditor need not return the pledge to his heirs. The Torah’s concern is for the humiliation of the borrower. Once he is dead, this concern no longer exists. If the heirs wish to recover the pledge they will need to repay the loan. Rabban Shimon ben Gamaliel says that a creditor may keep a pledge not just when the borrower dies but even after thirty days have expired since the time of the loan. At this point the creditor may sell the pledge to recover the debt.
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Bartenura on Mishnah Bava Metzia
נוטל אחד ומחזיר אחד – at the time that he (i.e., the borrower) needs it, he should restore it to him and detain the second with him (i.e., the creditor), as it is explained further on. He should return the pillow at night and the plow during the day.
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English Explanation of Mishnah Bava Metzia
A pledge may not be taken from a widow, whether she be rich or poor, as it states, “Do not take the a widow’s garment as a pledge” (Deut. 24:17). The Torah states that one may not take a pledge from a widow. The mishnah states that this is true whether the widow is rich or poor.
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Bartenura on Mishnah Bava Metzia
מת – the borrower. One does not restore the pledge/security to the heirs [of the borrower], for there is no commandment of restoring the pledge, for it is written (Deuteronomy 24:13): “You must restore the pledge to him…” – to him but not to his heirs.
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English Explanation of Mishnah Bava Metzia
If one takes a millstone as a pledge he violates a negative commandment and he is also in violation of both parts [of the millstone], as it states, “Do not take a mill or an upper millstone as a pledge” (Deut. 24:6). And they didn’t say just an upper millstone or a mill but anything that is necessary for food, as it states, “for that would be taking someone’s life as a pledge” (ibid.). The Torah states that one may not take a mill or an upper millstone as a pledge from a poor person. These two pieces of equipment are together used to grind wheat and without them the poor person could not make bread to eat. According to the mishnah the creditor who takes both of them is in violation of not one but two negative commandments, one for each piece. Furthermore, the mishnah again expands on the examples specifically mentioned in the Torah. The Torah mentions only the mill and upper millstone for they are a person’s “life”. Picking up on the last phrase of the verse the mishnah states that anything that helps to make food and is therefore a person’s “life” may not be taken as a pledge.
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Bartenura on Mishnah Bava Metzia
עד שלשים יום – the time of the court case. But the Halakha is not according to Rabban Shimon ben Gamaliel.
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English Explanation of Mishnah Bava Metzia
Questions for Further Thought: • Section four: The mishnah explains that it is forbidden to take a pledge from even a rich widow, and states that this is explicit in the Torah. Is it possible to explain verse 17 in Deut. 24 in another way, in other words that the prohibition is limited to poor widows? If so, why do you think the mishnah chose this explanation? • The Rabbis twice expand on the specific examples mentioned in the Torah. What is their motivation in doing so?
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Bartenura on Mishnah Bava Metzia
בין שהיא עניה בין שהיא עשירה וכו' – because there is according to the one (Rabbi Shimon – Bava Metzia 115a) who said that she is poor and we don’t take a pledge from her, because you must return it (i.e., the pledge/security) to her and she comes and goes to you, you bring her into disrepute with her neighbors, but a rich woman, about whom you don’t have to say this, I would say that you can take a pledge [from her], but this comes to inform us that this Tanna/teacher of the Mishnah does not, as it is written (Deuteronomy 24:17): “You shall not take a widow’s garment in pawn,” both a poor [widow] and a rich [widow] are implied.
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Bartenura on Mishnah Bava Metzia
משום שני כלים – the higher one is the upper millstone and the lower is a hand mill.
