Responsa for Bava Metzia 163:7
דאמר ר' יצחק מנין לבעל חוב שקונה משכון שנאמר (דברים כד, יג) ולך תהיה צדקה אם אינו קונה משכון צדקה מנא ליה מכאן לבעל חוב שקונה משכון
But here [the dispute arises] only if it is worth the loan, and they differ with respect to R. Isaac's dictum. For R. Isaac said: Whence do we know that the creditor acquires a title to the pledge?<span class="x" onmousemove="('comment',' That whilst it is in his possession it is his, and hence he is responsible for all accidents. ');"><sup>7</sup></span>
Teshuvot Maharam
Q. It is the law that the responsibility of a creditor toward a pledge he received as security for a loan is that of a paid bailee. Does this responsibility also extend to the amount by which the pledge exceeds the loan?
A. Since Ri ruled that the opinion of Rabba prevails, that the responsibility of a keeper of a lost object is that of a gratuitous bailee (B. M. 82a), the responsibility of the creditor toward the excess value of the pledge is also that of a gratuitous bailee. Although some authorities are of the opposite opinion, the very fact that a difference of opinion exists creates a doubt as to the law; and in case of doubt we do not render a verdict to collect.
SOURCES: Am II, 161; Mord. Sheb. 774; Tesh. Maim. to Mishpatim, 56; Agudah Sheb. 36; cf. Pr. 185; ibid. 699b.
A. Since Ri ruled that the opinion of Rabba prevails, that the responsibility of a keeper of a lost object is that of a gratuitous bailee (B. M. 82a), the responsibility of the creditor toward the excess value of the pledge is also that of a gratuitous bailee. Although some authorities are of the opposite opinion, the very fact that a difference of opinion exists creates a doubt as to the law; and in case of doubt we do not render a verdict to collect.
SOURCES: Am II, 161; Mord. Sheb. 774; Tesh. Maim. to Mishpatim, 56; Agudah Sheb. 36; cf. Pr. 185; ibid. 699b.
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