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Bava Metzia, 115

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?

(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 the heirs.

(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. Marcus)

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" (Devarim 24:10).

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 of debt.

(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. Marcus)

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.

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 collateral.

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.

115b