YeshivaThe torah world Gateway
Beit Midrash
- Sections
- Chemdat Yamim
- P'ninat Mishpat
Assuming that the collateral was stolen, the machloket (Bava Metzia 81b-82b) whether a borrower who is watching collateral has a status of a paid watchmen (shomer sachar) or a free watchman is crucial. This is because the former is obligated to pay if the watched object is stolen and the latter is exempt. The final halacha on the matter is unclear. The Shulchan Aruch (Choshen Mishpat 72:2) says the lender is considered a shomer sachar and must pay the borrower. On the other hand, the Rama (ad loc.) says that out of doubt which opinion is correct, we cannot extract money from the lender (while the lender cannot force payment of the loan from the borrower). The Shach (CM 72:22) also leaves the matter as a doubt but says that as a result of the doubt, if the borrower were to seize (or otherwise have control over) funds from the lender, he could keep the amount that is arguably due to him.
Therefore, if we were to rule according to the strict classical halacha, Reuven would swear that the collateral was indeed stolen, and he would not have to pay Shimon. Beit din does not administer oaths in our times but invokes compromise to compensate for the lack of an oath. Therefore, in this case, the compromise should also take into consideration the fact that even if the object was indeed stolen, Reuven would still be obligated to pay according to many opinions. This would cause us to raise the amount that Reuven would pay as a compromise.
In this case, there is somewhat of a question about the need to swear, as in the first place, Shimon originally said that he trusted Reuven that the collateral was stolen, although he now says that he does not trust Reuven. It seems that Shimon has the right to retract his belief in Reuven until the case is decided unless a kinyan was made to finalize his waiving of the need for an oath. Although a litigant who accepts the testimony of an invalid witness cannot back out of it after the testimony has been heard (Rama, CM 22:1), that is because it is thereby considered as if the witness were valid, in which case the testimony is permanent and even the witness cannot retract it (see Tumim 22:4). However, regarding accepting a claim of the opposing litigant, since the litigant can change his own claim, certainly to his detriment, the other litigant’s accepting of his word is also not permanent.
Furthermore, it is not clear that Shimon believed Reuven that he watched the collateral sufficiently well. It is not even clear that according to Reuven’s own story, he was not negligent. Therefore, it is proper for the dayanim to make Reuven pay two thirds of the value by which the collateral exceeds the loan.
P'ninat Mishpat (825)
Various Rabbis
307 - Participation in the Expenses
308 - Lost Collateral
309 - Demand to Remove a Chazan from His Post
Load More
P'ninat Mishpat P'ninat Mishpat: Undoing a Problematic Partnership – part II
based on ruling 84061 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Did Any Furniture Go to the Buyer? – part I
based on ruling 84093 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Sharing in Plumbing Expenses – part II
based on ruling 85013 of the Eretz Hemdah-Gazit Rabbinical Courts
Texts of Jewish Thought Why are Tanach Heroes Also Physically Strong and Military Heroes?
Rav Kook, Orot Hamilchama - Part II
Rabbis in Midrash
Lessons
fast navigation
Kuzari -Rabbi Ari Shvat Kuzari class 5- "Proofs of G-d"
This may be the most important class of the entire book, where we finally get to the Jewish proof of the existence of G-d and truth of the Torah. We should follow His own direction where He tells us how to get to Him: through the Nation of Israel: Jewish history, Jewish prophets (and today, prophecies fulfilled), and national reward & punishment towards Am Yisrael.
Ein Aya One Humanity, One Creator, One Jerusalem
Rav Kook innovatively and beautifully explains this aggadeta where our sages say that after Jerusalem was destroyed her cinnamon fragrance is only found locked in a particular kingdom's treasury.
Shlach Lecha "Why So Many Don't Make Aliya?" - Parshat Shlach
This short article deals with the weird phenomena that every single time Am Yisrael is meant to enter the Land of Israel, throughout the Tanach, 2nd Temple and until today, they "chicken out" and look for excuses. What's the problem with this mitzvah that proves so challenging. The article, based on sources, suggests that the difficulties of Eretz Yisrael is precisely her secret and beauty!
Kuzari -Rabbi Ari Shvat Kuzari class 4
The class deals with Islam and how the Muslim tries convincing the King of the Khazars, and why he was also rejected.
Beha'alotcha JEWISH STATE= GUIDE TO G-DLINESS & SELFLESSNESS
A Jewish State not only is a good idea, but educates us towards selflessness, altruism and G-dliness in our daily lives.
Ein Aya In Zion Even the Smoke of the Bark is Sweet
Just as Jewish nationalism is different from others, so too our capitol of Jerusalem is totally different than other national capitols. Rav Kook beautifully explains the passage in the Talmud that the trees of Yerushalayim were cinnamon trees.
Kuzari -Rabbi Ari Shvat Kuzari class 3
The second speaker invited to convince the Khazar King is the Christian, who presents their beliefs. Even before the questions of the King, "between the lines", the author R. Yehuda HaLevi already begins disproving them.
Ein Aya "Intimacy: Love, Life & Giving or Egocentric Taking & Expiration"
Today, many confuse between intimacy in marriage, based on love, giving and life which are diametrically opposed to empty "sex", pornography and prostitution which destroyed the Beit HaMikdash. The practical importance of clarifying this topic in today's western society is obvious, especially for young adults.
