Bava Metzia, Chapter 9, Mishnah 13 - the final mishnah of the chapter, and it introduces a new, independent topic: taking collateral when a loan has not been repaid on time, meaning seizing the borrower's property to secure the repayment of the debt. It is worth emphasizing right at the outset that many Torah commandments restrict the manner in which this can be done, and some of them will be explained in our mishnah.
A Preliminary Distinction:
The situation is entirely different when the terms of collateral are set in advance, at the time the loan is given. The lender is generally permitted to stipulate whatever conditions he wishes regarding the collateral he requests. However, our mishnah does not deal with that, but rather specifically with a case where collateral was not taken at the time of the loan, and now the borrower is not repaying his debt and the lender has no way to collect it. For whatever reason, there is no money to collect from the borrower, and therefore the lender seeks to seize something else as a pledge and security, which will ensure that payment is eventually received. This process is limited in several ways, and the mishnah discusses them.
"Hamalveh et chaveiro lo yemashenenu ela beveit din" - one who lends money to his friend may not take collateral from him except through a court:
Once a person has lent money to his friend, and now the borrower is not returning the debt and the loan is overdue - even if the lender is about to seize property belonging to the borrower, he is not permitted to do so himself. He must act through the court, and it is the court that will attach and seize the assets of one who has not repaid his debt.
The verse in the Torah speaks of the prohibition against entering one's friend's house, and we will address this momentarily. The Rishonim debate whether the obligation to turn to a court exists on a Torah level even when the lender meets the borrower in the public domain: according to Tosafos this is not a Torah obligation, and strictly according to the law the lender is permitted to take the hat off the borrower's head and say "I will hold onto this until you repay your debt", but the Rabbis prohibited this, lest he subsequently enter that person's house to take his hat. Others hold that there is an obligation to turn to a court in every case, and one may not act unilaterally even on a Torah level.
"Velo yikaneis leveito litol mashkono" - and he may not enter his house to take his collateral:
Even after the court is brought into the picture, and an agent of the court is the one executing the seizure of the collateral, the agent is not permitted to enter the borrower's house, as it is stated: "Bachutz ta'amod" - "You shall stand outside." This law is based on a derivation, because from a reading of the verses themselves it is not clear who is required to stand outside; the mishnah's understanding is that this does not refer to the lender, but rather to the agent of the court. The result is that no one goes inside, because doing so constitutes too severe a violation of a person's privacy, his autonomy, his home, and his dignity. The court indeed has the right to seize collateral, but the borrower is the one who must bring it out of his house, and they do not enter to take it from him.
"Hayu shenei keilim, noteil echad umaniach echad" - if there were two items, he takes one and leaves one:
What is the law regarding collateral that the borrower needs? The case the mishnah discusses is where the borrower has two items that combine together to the sum of the debt: one pillow and one plow. At night he needs the pillow to sleep on, and by day he needs the plow to work his fields, and only the two of them together reach the value of the loan. Therefore, the lender is permitted to seize both of them in order to reach the required collateral value against the entire loan, but he is obligated to return each item to the borrower at the time he needs it. The result is that the lender makes an exchange every day, taking one item and returning the other:
"Umachazir et hakar balaylah" - and he returns the pillow at night - every night he returns the pillow and takes back the plow.
"Ve'et hamachareshah bayom" - and the plow by day - in the morning he takes back the pillow and brings the plow to the borrower, so that he can do his work.
Regarding the word "leaves", there are other versions of the text that read "returns". As for the word "pillow", the commentators debate whether this means a pillow or a mattress, but in any case the meaning is that the borrower needs it for sleep. Furthermore, one must remember what was stated at the beginning of the mishnah, that the seizure of property is done by an agent of the court: the court stood outside the borrower's house, he brought out his plow and his pillow, and the agent of the court handed them over to the lender. From now on, the lender will have to return to the borrower twice every day, meet him outside his house, give him the pillow at night and take the plow, and in the morning return the plow and take the pillow. One might seemingly ask: what is the point of all this collateral, if it must anyway be transferred back and forth? This question will be resolved later in the mishnah.
"Ve'im meis, eino machazir leyorshav" - and if he dies, he does not return it to his heirs:
If the borrower dies, the lender does not have to return the collateral in his possession to the heirs, and he is permitted to keep it and sell it. The novel point here is as follows: Usually, when a person dies, his children inherit both his assets and his liabilities, and they must pay off his debts in addition to receiving the assets. However, creditors to whom the estate owes money automatically acquire a lien only on the land - the real estate - whereas, according to Mishnaic law, they do not have a lien on movable property, such as a pillow or a plow.
It turns out that had the lender not been in possession of the plow or the pillow at the time of the borrower's death, he would not have been able to collect them at all, and he would have had to collect his debt from the real estate. But since he is already in possession of these movable items, he can keep them, because he is not obligated to return what is already in his hands. This is the novel point: he is permitted to withhold the collateral that is in his possession.
The opinion of Rabban Shimon ben Gamliel:
Rabban Shimon ben Gamliel says: "Af le'atzmo eino machazir ela ad sheloshim yom" - even to [the borrower] himself, he only returns it for up to thirty days. This whole routine of going back and forth every day to return the pillow lasts for only thirty days - a grace period during which the beis din has the lender refrain from collecting his money, but rather just hold the pillow or the plow as collateral. After thirty days, the lender has the right to say: Time is up, you had a thirty-day grace period. And even if the borrower needs the pillow to sleep on, the lender is permitted to sell it to receive money and cover his debt.
"Sheloshim yom vehale'ah mocher bebeis din" - from thirty days and onward, he sells it in beis din: After thirty days, he is permitted to sell the collateral, provided it is done under the auspices of the beis din, to ensure that a fair price is obtained. After all, any amount received from the sale of the collateral will be deducted from the total debt, and there is a conflict of interest here: The lender wants to get his money quickly, while the defaulting borrower wants the price to be as high as possible in order to reduce his debt. Therefore, the sale is conducted in beis din to ensure that a fair price is received.
In practical halachah: If the borrower needs the item that was taken as collateral, the lender is never permitted to sell it. But if he does not need it - for instance, he has two pillows, or it is a book that he does not need, and even if he wants it but does not need it - after thirty days the lender is permitted to sell what was seized in order to cover his debt.
Taking collateral from a widow:
Now the Mishnah moves to the same situation of seizing assets from a borrower who did not repay his debt, except that here the borrower is a widow. The Torah states a special law absolutely forbidding this: "Almanah, bein shehi aniyah uvein shehi ashirah, ein memashkenin osah, shene'emar: 'Velo tachavol beged almanah'" - a widow, whether she is poor or whether she is rich, we do not take collateral from her, as it is stated: "And you shall not take a widow's garment as a pledge." One may not take collateral from a widow to cover the debt, and this applies not only to her garments but to all her assets.
One might ask: Since the verse already stated this, what does the Mishnah come to add? The answer is that there is another opinion, which is not explicitly mentioned in our Mishnah - the opinion of Rabbi Shimon. Rabbi Shimon generally holds "darshinan ta'ama dikra," meaning that we delve into the rationale behind the mitzvah and apply it accordingly. According to him, it is clear that the reason we do not seize a widow's property is because we are dealing with a poor widow, and it is unfair, and we want to protect widows. But a rich widow, a millionaire who owes fifty shekels and refuses to pay them - why shouldn't the lender take her pillow and sell it for fifty shekels? According to Rabbi Shimon, he is certainly permitted to do so, and the Torah did not intend this [prohibition to apply to her]. Our Mishnah disagrees and establishes: The verse made no distinction between a rich and a poor woman, and therefore the halachah applies equally to rich and poor widows, and their property may not be seized. And this is the halachah.
"Hachovel es harechayim" - one who takes a millstone as a pledge:
The Torah forbids taking as collateral, in a scenario like this and from any person, the utensils used to prepare food. The example in the verse is: "Lo yachavol rechayim varachev" (he shall not take a lower or an upper millstone as a pledge) - one may not take as collateral from a poor person the hand-mill used to grind wheat into flour. Now, the verse does not mention just "rechayim," but "rechayim varachev," two parts together: The lower part is called rechayim - it is the base on which everything rests - while the rachev is the upper part, which rotates in circles and has a handle.
The method of grinding is to place two heavy stones one on top of the other, and to put the grains between them; using the handle on top, one turns the upper stone, which grinds against the lower stone and crushes the grains into flour. Since the verse mentioned both a handmill and an upper millstone, the lower and upper stones, these are considered two separate utensils. (In other Mishnayos, the upper part is called a "rechev", as in our verse, while the lower part is not called a "reychayim" - a term that refers to the entire system - but rather a "shechev". Our Mishnah does not mention this term.)
If someone takes a borrower's handmill as collateral after the loan was not repaid - "over belo ta'aseh" - he violates a negative commandment, and transgresses a Torah prohibition. Furthermore: "vechayav mishum shenei keilim" - he has committed two separate violations of the same commandment, and receives lashes twice, "shene'emar: 'lo yachavol reychayim varechev'" - as it is stated: "He shall not take a handmill and an upper millstone as collateral." The verse specified the two utensils, the handmill and the upper millstone, and although it could have grouped them as one, it used the language of two, teaching that there are two separate utensils here.
The Mishnah continues: "Velo reychayim varechev bilvad amru, ela kol davar she'osim bo ochel nefesh" - And they did not say this only about a handmill and an upper millstone, but rather about anything used to prepare food. The law is not limited to a handmill and an upper millstone, but applies to any utensil used to prepare food - "ochel nefesh" means food that sustains the soul, referring to regular food - such as a pot, a pan, a butcher's knife, or a meat cleaver, which may not be taken as collateral, "shene'emar: 'ki nefesh hu chovel'" - as it is stated: "For he takes a life as collateral." One who takes them as collateral is considered as if he took the life of that person, for with them he prepares his food. Therefore, one should not take these items, but rather take other items that are not used for preparing food.