Responsa על בבא מציעא 72:3
Teshuvot Maharam
Q. When A was imprisoned the community delegated B to endeavor to release him. A claims that he sent books to B, which were valued at twelve marks, so that B, using the books as security, might procure a loan from the charity-chest at its regular rate of interest; and that he, thus, owes B nine pounds Nürnburg coins, which he is ready to repay. He demands that B permit him to redeem his books. B claims: a) that when A gave him the books, he, A, undertook to make good all damages incurred in securing the loan; b) that he, B, suffered damages because of his endeavors on A's behalf; c) that A sent word to R. Yedidyah and to B, to sell two books; d) that he, B, gave the two books to Rabbi Yedidyah who sold them, but who now refuses to give the money to B. A, however, claims that he only advised B to secure the aid of Rabbi Yedidyah in selling the books, since R. Yedidyah knew their value and how to sell them, but that he did not permit B to give the books to R. Yedidyah. Moreover, A claims that R. Yedidyah retains the money he received for the two books, for a debt B owes him. B denies that he owes money to R. Yedidyah.
A. If B admits that he received A's books, he is responsible for them. If, however, B claims that A gave him permission to give the books to R. Yedidyah, he must take an oath to that effect and then be free from obligation. Moreover, if A usually entrusted his valuables to R. Yedidyah, B is free from obligation without taking an oath. As to the damages B claims to have suffered on A's accounts because he went surety for A to Gentiles, if he has in his possession money belonging to A, he may take an oath as to the amount of damages he suffered, and be entitled to retain that sum. For if one Jew goes surety to a Gentile for another Jew, the latter must make good all damages suffered by the surety because of his suretyship, excepting damages caused by his wilful neglect. At first I was told that this law was an ordinance enacted by the communities, but now I realize that it is sound talmudic law (based on B. K. 114a: "thou hast placed a lion next to my field"). If, however, B has in his possession no money belonging to A, A may take an oath that he expressly undertook to be responsible only for the interest of a loan secured from the charity-chest, and be obligated to pay B only such interest.
SOURCES: Pr. 977.
A. If B admits that he received A's books, he is responsible for them. If, however, B claims that A gave him permission to give the books to R. Yedidyah, he must take an oath to that effect and then be free from obligation. Moreover, if A usually entrusted his valuables to R. Yedidyah, B is free from obligation without taking an oath. As to the damages B claims to have suffered on A's accounts because he went surety for A to Gentiles, if he has in his possession money belonging to A, he may take an oath as to the amount of damages he suffered, and be entitled to retain that sum. For if one Jew goes surety to a Gentile for another Jew, the latter must make good all damages suffered by the surety because of his suretyship, excepting damages caused by his wilful neglect. At first I was told that this law was an ordinance enacted by the communities, but now I realize that it is sound talmudic law (based on B. K. 114a: "thou hast placed a lion next to my field"). If, however, B has in his possession no money belonging to A, A may take an oath that he expressly undertook to be responsible only for the interest of a loan secured from the charity-chest, and be obligated to pay B only such interest.
SOURCES: Pr. 977.
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