Shabbat Parashat Matot Masei | 5769

Hemdat HaDaf HaYomi: Safeguarding Collateral

This week in the Daf Hayomi, the Gemara deals with the laws of a shomer (a person who receives an object to safeguard) and particularly with the distinction between a shomer chinam (who doesn't receive pay for safeguarding) and a shomer sachar (who receives pay). The main difference between them is that a shomer chinam has to pay for the object only if he was negligent, while a shomer sachar also has to pay in a case where the object was lost or stolen. The question arises; is a person who gives a loan, and takes collateral to secure the loan, considered a shomer chinam on the collateral or a shomer sachar?

The Mishna (80b) states that a person who gives a loan and takes collateral is considered a shomer sachar. At first glance, this appears puzzling. A person who gives a loan is doing a favor for which he receives no payment, so why is he considered a shomer sachar on the collateral? The Gemara (81b-82b) offers a few explanations, and the Rishonim argue about how to rule. The Rif (51a) rules in accordance with the opinion of Rav Yosef. According to Rav Yosef, any time that the act of guarding involves a Mitzvah, that generates the status of a shomer sachar. The reason being, that when a person is fulfilling one Mitzvah, he is exempt from fulfilling other Mitzvot. If a poor person will come to ask for charity while he is busy taking care of the object, he will be exempt from giving it to him. According to Rav Yosef, this is considered receiving benefit from the safeguarding, thus defining one as a shomer sachar.  So too, a person who gives a loan is fulfilling a Mitzvah, and when he is taking care of the collateral, he is exempt from other Mitzvot, thus defining him as a shomer sachar.

The Tosafot (82a d"h Neima) disagree with the Rif and state that we do not rule in accordance with Rav Yosef. According to their opinion, the fact that a person is fulfilling a Mitzvah is not sufficient to turn him into a shomer sachar. Therefore, they claim that, in principle, a person who gives a loan is really a shomer chinam on the collateral. The reason the Mishna states that he is a shomer sachar is because, when a person takes collateral against a loan, it is considered as if he stipulated with the borrower that, if the collateral will be lost or stolen, its value will be deducted from the loan. If the collateral is equal to the loan, then the debt will be cancelled out completely.

The difference between the opinions of Tosafot and the Rif is borne out in a case where the collateral is worth more then the loan. According to the Rif, the lender is considered a shomer sachar on the entire value of the collateral, and therefore, if the collateral will be lost or stolen, he will both lose the debt and have to pay the remaining value of the collateral. However, according to the Tosafot, he is only considered a shomer chinam on the value of the collateral that is beyond the value of the loan, and therefore, he will only lose the debt, but he will not have to pay the remaining value.

The Shulchan Aruch (Choshen Mishpat 72, 2) rules according to the Rif, but the Ramma quotes the Tosafot and states that, since this issue is in doubt, we cannot obligate one to pay.

Summary:

A lender who takes collateral is considered a shomer sachar on the collateral. According to the Rif, even if the collateral is worth more than the loan, he is considered a shomer sachar on its entire value. According to the Tosafot, he is considered a shomer sachar only up to the value of the loan, but on the remainder he is considered a shomer chinam.

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