[bm35a: Rav Huna had ruled that a custodian who is willing to pay must still swear that the deposit is not in his possession. Recall that the analysis of our mishna's second case ("I lent you a selah with collateral worth a selah" vs "You lent me a selah with a collateral worth 3 dinars") was that the _lender_ [not the borrower] should swear; otherwise, the borrower might swear, and the lender could produce the collateral, thus disqualifying the borrower from any further testimony.]

[We begin on the last word of bm34b.]

If Rav Huna's ruling is valid [why be concerned that the lender might produce the collateral]; once the lender swears that he does not have the collateral, how can he produce it?

Rava said: [The lender swears only when] there are witnesses that the collateral was destroyed in a fire. [The lender would then swear only on the value of the collateral, not that he did not have it.]

If so, how can the lender bring the collateral? [We know that the collateral has been destroyed, so he can't come up with the collateral and discredit the borrower. So why should he swear at all?]

Instead, Rav Yosef said that [the mishna's case is when] there are witnesses that the collateral was stolen. [Again, the lender must swear, for it is always possible that he can produce the collateral and discredit the borrower.]

[The gemara objects:] Ultimately, how can he produce the collateral? [If it's stolen, he doesn't have it. And if we are not concerned with the possibility of his producing the collateral, why make his swear at all?]

[The gemara answers:] [The lender] will take an trouble [to recover the collateral] and will produce it. [Thus, even if it is stolen, we are concerned that the lender will discredit the borrower.]

[The gemara asks:] If so, when the lender swears, the borrower may take the trouble to recover the collateral [and thus discredit the _lender_!].

[The gemara answers:] It is reasonable to assume that the lender knows who enters and leaves his house and, if he takes the trouble, he can track down the collateral. But how does the borrower know who enters and leaves the lender's house? [Thus, we are o nly concerned that the lender will recover the stolen collateral and discredit the borrower.]

[Our mishna had ruled that, when there is a dispute over the value of the collateral, the obligation to take the oath (which _should_ be the borrower's obligation) is transferred to the lender.]

Abbaye says: [The rabbinic requirement that the lender swear to the value of the collateral] is a decree lest the lender say to the borrower "I found it after I took the oath." [In other words, even after the lender swore that he no longer had the collate ral, he would _still_ be obligated to take an oath on the _value_ of the collateral. The reasoning is that, even after swearing that he did not have it, the lender could actually find the collateral ... and disprove any potential oath by the borrower. Thu s, to protect the borrower from being disqualified as a witness, the rabbis required the lender to take the oath.]

Rav Ashi said: Both [the borrower and the lender] swear. The lender swears that he does not have the collateral, and the borrower swears about the value of the collateral. And _this_ is what the [cited mishna] is saying: Who swears first? The lender swear s first [that the collateral is not in his possession]. Otherwise, if the borrower swears first, the lender might produce the collateral and disqualify the borrower from future testimony.

Rav Huna b. Tachlifa said in the name of Rava: The first part of the second half of our mishna [i.e., what we have called "Case 3"] refutes Rav Huna. [Our mishna:] The borrower claims: "You lent me a selah on collateral worth two sela'im", and the lender says: "No, I lent you a selah on collateral worth a selah" [and I thus don't owe you a refund]. The lender is exempt [from an oath: Remember the principle that the oath is required only if there is partial admission of liability -- in this case, the lende r denies any additional liability].

[This is the end of the mishnaic quotation; now we shall see how this is inconsistent with Rav Huna.]

But if Rav Huna's position is binding, since he already has to swear that the collateral is not in his possession, let him also have to swear to the value of the collateral on the basis of an extended oath!

[The "extended oath" (gilgul shvu'ah) reflects the fact the oaths were not gratuitously administered; oaths were only required under very specific circumstances. But when one oath was required by biblical law, the obligation to swear could be extended to include other oaths at the same time. Thus, if, as Rav Huna proposed, the lender was already required to take an oath that the collateral was not in his possession, why not extend the oath to include the value of the collateral? The fact that the oath was not extended seems to suggest that the mishna did not accept Rav Huna's ruling.]

Rav Ashi said: I asked this of Rav Kahana, and he said that the mishna refers to a case in which the borrower trusts the lender [so that the lender is exempt from the oath that the collateral was not in his possession, and there is thus no extended oath e ither. It follows that when the borrower _does not_ trust the lender, he is required to swear both that it is not in his possession and as to its value].

[The gemara asks:] So [if the borrower trusts the lender when he says that it it not in his possession] let him also trust him about the value of the collateral [so that he should not be required to swear to that either].

[The gemara answers:] [The borrower assumes] that the lender is unfamiliar with the collateral [and doesn't know exactly how much it was worth].

[The gemara asks:] So let the lender trust the borrower [since the borrower _does_ know the exact value of the collateral].

[Answer:] The lender does not trust the borrower.

[Question:] Why does the mishna discuss a case in which the borrower trusts the lender [who claims that he does not have the collateral], but the lender does not trust the borrower [to accurately give the value of the collateral]?

[Answer:] The borrower applies to the lender the rule [Prov 11:3] "The integrity of the upright will guide them", "and the lender applies to the borrower the rule: "But the perverseness of the faithless shall destroy them."

[In other words, both assume that their relative financial status is justified by their virtues (or lack thereof). The borrower assumes that the lender has been successful because of his virtue, and can be trusted. The lender assumes that the borrower's p overty reflects his moral failures, and he cannot be trusted.]

There was a man who deposited jewlery with his friend. Later,] he said to him [the custodian], "Give me the earrings." He [the custodian] said "I do not know where I put them." He [the custodian] went to Rav Nachman; Rav Nachman said to him "Any 'I do not know' is [evidence of] negligence; go and pay him." He did not pay, so Rav Nachman seized his house. In the end, the jewelry was found, and it had increased in value. Rav Nachman said "The jewelry returns to its owner, and the house returns to its owner.

Rava said: I was sitting before Rav Nachman [when this case came before him], and we were studying this chapter of HaMafkid [the name of this chapter, "One who deposits"], I said to him [citing the words of our mishna:] "If he pays and does not want to sw ear" [i.e., if the custodian pays rather than swear, the custodian gets the double payment when the thief is apprehended]. [Rav Nachman ruled that the jewelry should be returned, even though its value had increased. But our mishna indicates that the custo dian should get the increased value.] Rav Nachman did not respond to me, and appropriately so. What was his reason? There [in the case of the mishna] he [the custodian] did not bother the court [i.e., he paid voluntarily to avoid the oath]; here [in Rav N achman's case,] he bothered the court. [The courts intervention was required in order to make him pay; therefore, he does not acquire the rights to the increased value];

[You may recall that, on 34a, R. Zeira had ruled that sheep's shearings and similar increases in value are not conveyed by the owner to the custodian. If so, why did Rava assume that the increase in value should go to the custodian? An explanation by the Tosafot: R. Zeira's ruling applies to "internal increases in value," i.e., if a cow delivers calves. But the increase in the case of the jewelry was not "internal" -- the jewelry itself is unchanged. And R. Zeira's ruling does not apply to increases of va lue produced by inflation or other market forces.]

Does this mean that Rav Nachman holds that an assessment [on the basis of which the land was seized to cover the unpaid debt] can be rescinded? [Accordingly, if the debtor can find the wherewithal to pay the debt, it is cancelled retroactively and the pro perty is returned to him, even if it has increased in value in the meantime.]

[The gemara rejects this conclusion:] There [in Rav Nachman's case] it is different, because the court-ordered seizure was in error. The jewelry was there [in the custodian's possession, and not permanently lost]. [The seizure was thus _ab initio_ invalid , and we cannot use this case to derive Rav Nachman's position in the more common cases in which property is seized to satisfy a debt.]

The scholars of Neherde'a said: An appraisal (of property for seizure against an unpaid debt) can be rescinded within twelve month. [The seized property must therefore be returned to its owner if the debtor pays the debt within 12 months of the seizure]. Ameimar said: I am from Neherde'a, and I hold that an appraisal can always be rescinded. [Thus, there in no limit to the period during which seized property must be returned if the debt is repaid.]

[A few words about Neharde`a: It is the town in which one of two colleges were founded in the first generation of Babylonian Amoraim (3rd century C.E.): Neharde`a by Shmuel and Sura by Rav. Unlike Sura. which was soon supplanted by the prestigious yeshiva at Pumpeditha, the one at Neharde`a survived throughout the Talmudic period. Ameimar, cited as being from Neharde`a, was a contemporary of Rav Ashi, redactor of the Talmud, by whose time the center of learning had been relocated once more, now to Mata Me `hasia, believed to be a suburb of Sura.]

The halakha is that an assessment can always be rescinded, because it says [Deut 6:18]: "And thou shalt do that which is right and good."

It is clear that if (a debtor's) property is assessed (by the court) for (non-payment of his debt to) a creditor, and he (the creditor transfers the assessment to _his_ creditor, we tell him (the second creditor):"You are no better than the person from wh om your claim is derived. [Reuven borrows money from Shimon. Shimon borrows money from Levi. Reuven can't repay, so his property is seized and delivered to Shimon. Shimon now transfers the same property to Levi. Reuven now has cash available, and wants hi s property back. Just as Shimon would have to return the property, so would Levi.]

But if a creditor _sold_ [the seized property] or left it as an inheritance, or gave it as a gift, these [secondary owners] acquired the property _qua_ property, and not in lieu of cash [and are not required to accept the original debtor's cash offer]. [T he biblical verse requires that property acquired in lieu of cash be redeemed for cash. But once the property has been acquired _as property_, the owner is no longer required to redeem it for cash.]

If property was assessed (to cover a debt owed) to a woman, and she was subsequently married, or if a woman's property was assessed (to cover a debt that she owes) and she was subsequently married, and then the woman died, the husband is considered a purc haser with respect to his wife's property. He need not return {the property if the debtor offers cash payment) nor (if she was the debtor and the property was seized from her) do we (necesarily) return (the property) to him (if he offers cash).

[M'log property (mentioned below) is owned by the wife, but rights to profits (e.g., fruits of a tree, wool from a lamb) belong to the husband. It differs from "Nikhsei tzon barzel", which is property transferred to him outright and which she has no right to sell.]

As R. Yosi b. Hanina said: In Usha, the rabbis enacted a rule -- if a woman sells m'log property in her lifetime, and then dies, the husband can recover the property from the purchaser. [Since the husband has the rights to the profits of the m'log prope rty, the sale can only have been of the property itself, to take effect after the woman's death.

The decision at Usha amends a mishna in (Ketubot 78a), according to which sale of property by a married woman is final, so being his wife's heir, he only acquires the property that was in her possession at the time of her death, but has no right to proper ty that she sold during her lifetime that she had at the time of her right to reclaim property sold during her lifetime.

According to the Usha enactment, the husband, at the time of marriage, becomes like a purchaser, if only with respect to subsequent sales of the property. If the marriage ends in divorce, the property is hers. But if the wife dies, the rabbinic enactment treats the wedding as a "purchase" of m'log property. Therefore, on her death, he an claim to have purchased the property from her before she sold it and has a prior claim to it.

Usha, a town in western Galiliee, was the seat of the Sanhedrin after the Bar Kochba revolt, so the Usha enactment - along with several others - is, in fact, a policy established by the Sanhedrin.]

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