Responsa for Bava Kamma 80:5

ונימא ליה אי אהדרתיה ניהליה הוה מעריקנא ליה לאגמא משום דא"ל סוף סוף לאו מעלייה הוו משתלמי

— We must therefore suppose the case to have been one where the Court of law stepped in first and took possession of the ox. But if so why should the owner pay one half of the damages? Why not plead against the borrower: 'You have allowed my ox to fall into the hands of a party against whom I am powerless to bring any legal action'? — [This could not be pleaded] because the borrower might retort to him: 'Were I even to have returned the ox to you, would the Court of Law not have taken it from you?' But why should the owner still not plead against the borrower: 'Were you to have returned it to me, I would have caused it to escape to the pasture'?<span class="x" onmousemove="('comment',' V. p. 227, n. 7. ');"><sup>5</sup></span>

Teshuvot Maharam

Q. We are in doubt concerning the implications of the following ruling of the scholars of Nehardea: When one person gives goods to another in order that the latter trade therewith and the former share in the profits, half of the value of such goods is considered a loan (at the risk of the active partner) and the other half, a trust (at the risk of the investor). Does this statement imply that the part which is considered a loan is subject to all the laws governing loans, even to the extent of being cancelled by a Sabbatical year? Would it not work to the disadvantage of the investor?
A. That part which is considered a loan is subject to all the laws governing loans and is subject to cancellation by a Sabbatical year. However, the investor can safeguard his interests by writing a Prosbol.
This Responsum is addressed to R. Shemariah.
SOURCES: L. 490; Mord. B. M. 390.

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