Subscribe to the Daily Daf Yomi Summary here.
Our Mishna treats the topic of a mashkon (“pledge” or “pawn”) taken from a debtor who fails to pay and rules that the lender must return it when needed. A pillow, for instance, taken as a mashkon must be returned at night. However, a pillow taken as a mashkon at the time of the loan does not have to be returned each night as the borrower gave it willingly (114b).
Our sugya cites other halachos applying to a mashkon taken after payment is due as opposed to that given at the time of a loan. One halachah pertinent to all mashkonos is that the lender must not sell a mashkon by himself and take the proceeds in payment for the loan but rather must bring it to a beis din for valuation. If a lender sold a mashkon without such valuation, the sale is invalid even if the price was correct (Teshuvos HaRosh; Shulchan ‘Aruch, C.M. 73:15).
A lender who thought he was clever ignored this halachah and almost suffered a great loss as a result of his actions. When his debt was not paid he took an antique Sefer Torah as a mashkon. The debtor was later convicted of a crime and sentenced to prison for several years. The lender thought he could what he pleased with the Sefer and donated it with much song and ceremony to a synagogue. Eight years later the debtor was freed and came to the lender to pay what he owed and redeem the Sefer Torah. Discovering what had occurred, he refused to accept the situation and appealed to Rav Yehudah Asad, who ruled in the debtor’s favor (Responsa Yehudah Ya’aleh, Y.D. 283). First of all, the donation was invalid as the lender was forbidden to change the proprietorship of the mashkon without valuation by a beis din and the synagogue administration was ordered to return the Sefer Torah to the borrower. Moreover, according to many poskim, the borrower was exempt from paying the debt as soon as the lender gave away the mashkon. His action showed he despaired of ever collecting the debt and even the borrower’s wish to pay does not renew it! Still, Rav Asad adopted the opinion of the Chacham Tzvi (Responsa, 144), that yeiush (despair) does not cancel a loan, and ordered the debtor to pay. (See Shulchan ‘Aruch 163:3 and Ketzos HaChoshen, ibid, S.K1.)
Meoros Hadaf HaYomi