Siman - Pesachim Daf 31
- Machlokes whether a creditor collects retroactively
The Mishnah at the bottom of Daf 30b stated, נכרי שהלוה את ישראל על חמצו אחר הפסח מותר בהנאה – A nochri who lent a Jew money before Pesach with the Jew’s chametz as a security, if the Jew defaulted on the loan, the Jew’s chametz is mutar b’hana’ah. Rashi explains that since the chametz is deposited by the nochri, and he does not need to take any further action in order to gain possession of it, we consider that he takes possession of the chametz retroactively from the time it was deposited with him.
Related to this, the Gemara introduces a machlokes regarding a creditor who holds a mortgage on a borrower’s property. Abaye said, בעל חוב למפרע הוא גובה – If the borrower defaults on the debt, the בעל חוב collects the property retroactively, whereas Rava said, מכאן ולהבא הוא גובה – He collects the property only from here on. The Gemara clarifies that they argue in a case where the בעל חוב either sold or was makdish the property before the loan came due. Abaye holds that once the borrower defaulted, it emerges retroactively that the property was in the lender’s possession all along. Rava holds that since, had the borrower had money he could have evicted the lender, it emerges only now, when he defaults on the loan, that the lender acquires it.
- The source that a creditor acquires the security that was deposited by him.
The Gemara brings a Baraisa regarding a Jew who lent a nochri money before Pesach with the nochri’s chametz as a security. The Tanna Kamma says that after Pesach, if the nochri defaults on the loan, the chametz is mutar b’hana’ah. It was said in the name of Rebbe Meir that one transgresses if he benefits from the chametz.
The Gemara determines that the machlokes is regarding a rule taught by Rebbe Yitzchak who said, מנין לבעל חוב שקונה משכון – From where is it derived that a creditor acquires the security that was deposited by him? For it is stated regarding a creditor who returns the nightclothes of a poor Jew as security for a loan at night, ולך תהיה צדקה – and for you it will be considered tzedakah. Now if the lender does not acquire the security, on what basis is it considered tzedakah? From here then it is derived that a creditor acquires the security. The Tanna Kamma holds this rule applies only when one Jew takes a security from another Jew, for that is when it is considered tzedakah. Rebbe Meir applies a kal v’chomer and holds that if a Jew acquires a security from a Jew, then all the more so he acquires the security from a nochri.
- Chametz considered removed from owner’s possession if dog cannot find it.
The next Mishnah states, חמץ שנפלה עליו מפולת הרי הוא כמבוער – Chametz, upon which a ruin has collapsed, is considered removed from the owner’s possession, and he does not transgress בל יראה. Rabban Shimon ben Gamliel says, כל שאין הכלב יכול לחפש אחריו – One may regard this chametz as removed only if it so deeply buried that a dog is unable to search after it and unearth it. The Gemara clarifies that it must be buried to at least three tefachim so the dog can not sniff it, whereas safeguarding money only requires a tefach covering so that it is concealed from the eyes of a thief.
