To return the surety to the owners at the time that he needs it: That we were commanded to return the surety to its Israelite owners at the time that it will be needed by him; meaning to say that if the surety is something that a person needs during the day — for example, the tool for his work — he should return it to him during the day, and the borrower brings it back to him during the night, and if it is a vessel that he needs during the night — for example, bedding or a blanket — he should return it to him during the night, and the borrower brings it back to the creditor during the day. And the language of Mekhilta, Mishpatim 186 is “‘You must return it to him before the sun sets’ (Exodus 22:25) — this is the clothing of the day, that you must return it to him [the whole day. That you must return the clothing of the night] for the whole night, from where [do I know it]? [Hence] we learn to say, ‘You must surely return the pledge to him at sundown’ (Deuteronomy 24:13). From here they said, we take the clothing of the day for surety during the night and the clothing of the night during the day.” And the proof that this is from the count of positive commandments is that which they, may their memory be blessed, said in the Gemara in Makkot 16a that the negative commandment of “you must not enter his house to seize his pledge,” is a negative commandment that is rectified by a positive commandment — and [that] positive commandment is “You must surely return.”
It is from the roots of this commandment that God, may He be blessed, desired, in His goodness, the good of His creatures and their merit and wanted that they should teach themselves the traits of kindness and mercy in order that they merit the good. And [it is] like the matter that I wrote in Parashat Mishpatim in Sefer HaChinukh 66 and in many commandments.
From the laws of the commandment is that which they, may their memory be blessed, said in the chapter [entitled] HaMekabel (Bava Metzia 113a) [that] one who gives a loan to his fellow is not permitted to take surety from him — meaning to say [if it is] not in court. And if he takes surety from him, he is obligated to return the surety — the bedding during the night, and the plow during the day. To what do these words apply? When he takes surety when it is not at the time of his loan. But if he takes surety at the time of his loan — for example, he lends to his fellow based on the surety — he does not need to return it at all. And until when does he have to [keep] return[ing] the surety? Forever.
And if you shall ask, “If so, what does the surety help?” — it helps that the debt not be withdrawn on the seventh year, as we hold [that] a loan with surety is not withdrawn by the seventh year, and as I have written concerning the commandment of the sabbatical year above (Sefer HaChinukh 577). And, so too, it helps with the matter that this surety does not become [classified as] movable goods with regards to the son of the borrower — as we hold that the [inherited] movable goods of orphans are not liened to the creditor, unless the borrower acquired it for the creditor explicitly — as is the way that we do it today in our contracts. And since this surety is in the possession of the creditor — even if the borrower dies when it is in his home — it does not become movable goods with regards to his sons. Rather, the creditor extracts it and he is paid [for the debt] from it. It also helps him that if he wants to be paid for his debt, he sells it and is paid from it — if the borrower does not want to redeem it. As they only said that he has to return it forever, if the creditor does not want to be paid from it for his debt. And if the surety is from vessels that are not required for work during the day and for cover at night, they, may their memory be blessed, said (Bava Metzia 113a and see Mishneh Torah, Creditor and Debtor 3:6) that we leave it with him for thirty days; so that the borrower can look for money to repay him. And if he has not paid for it after thirty days, [the creditor] sells it in court. And the rest of its details are elucidated in the chapter [entitled] HaMekabel in Bava Metzia.
And this commandment is practiced by males and females in every place and at all times. And one who transgresses it and does not return the pledge in the way that we wrote above has violated this positive commandment — besides having violated a negative commandment, as we wrote about this already, with God’s help (Sefer HaChinukh 586).
לְהַחְזִיר הַמַּשְׁכּוֹן לַבְּעָלִים בְּעֵת שֶׁצָּרִיךְ לוֹ – שֶׁנִּצְטַוִּינוּ לְהָשִׁיב הַמַּשְׁכּוֹן לִבְעָלָיו הַיִּשְׂרְאֵלִי בְּעֵת שֶׁיִּצְטָרֵךְ אֵלָיו, כְּלוֹמַר, שֶׁאִם הַמַּשְׁכּוֹן הוּא מָה שֶׁצָּרִיךְ הָאָדָם בַּיּוֹם, כְּגוֹן כְּלֵי מְלַאכְתּוֹ, יְשִׁיבֵהוּ אֵלָיו בַּיּוֹם, וְהַלּוֹוֶה יַחְזִירֵהוּ לוֹ בַּלַּיְלָה. וְאִם הוּא כְּלִי שֶׁצָּרִיךְ אֵלָיו בַּלַּיְלָה, כְּגוֹן כֶּסֶת וּמִכְסֶה, יְשִׁיבֵהוּ לוֹ בַּלַּיְלָה, וְהַלּוֹוֶה יַחְזִירֵהוּ לַמַּלְוֶה בַּיּוֹם. וּלְשׁוֹן מְכִילְתָּא (משפטים פסקא קפו), עַד בֹּא הַשֶּׁמֶשׁ תְּשִׁיבֶנּוּ לוֹ (שמות כב כה) זֶה כְּסוּת יוֹם, שֶׁאַתָּה מַחְזִירוֹ [כָּל הַיּוֹם, כְּסוּת לַיְלָה שֶׁאַתָּה מַחְזִירוֹ] כָּל הַלַּיְלָה מִנַּיִן? תַּלְמוּד לוֹמַר הָשֵׁב תָּשִׁיב לוֹ אֶת הַעֲבוֹט כְּבוֹא הַשֶּׁמֶשׁ, מִכָּאן אָמְרוּ, מְמַשְׁכְּנִין כְּסוּת יוֹם בַּלַּיְלָה, וּכְסוּת לַיְלָה בַּיּוֹם. וְהָרְאָיָה שֶׁזֶּה מִמִּנְיַן מִצְוֹת עֲשֵׂה מָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה בַּגְּמָרָא מַכּוֹת (טז, א) כִּי לָאו דְּלֹא תָבֹא אֶל בֵּיתוֹ לַעֲבֹט עֲבֹטוֹ הוּא לָאו שֶׁנִּתָּק לַעֲשֵׂה, וְהָעֲשֵׂה הוּא הָשֵׁב תָּשִׁיב לוֹ וְגוֹ'.
To return the surety to the owners at the time that he needs it: That we were commanded to return the surety to its Israelite owners at the time that it will be needed by him; meaning to say that if the surety is something that a person needs during the day — for example, the tool for his work — he should return it to him during the day, and the borrower brings it back to him during the night, and if it is a vessel that he needs during the night — for example, bedding or a blanket — he should return it to him during the night, and the borrower brings it back to the creditor during the day. And the language of Mekhilta, Mishpatim 186 is “‘You must return it to him before the sun sets’ (Exodus 22:25) — this is the clothing of the day, that you must return it to him [the whole day. That you must return the clothing of the night] for the whole night, from where [do I know it]? [Hence] we learn to say, ‘You must surely return the pledge to him at sundown’ (Deuteronomy 24:13). From here they said, we take the clothing of the day for surety during the night and the clothing of the night during the day.” And the proof that this is from the count of positive commandments is that which they, may their memory be blessed, said in the Gemara in Makkot 16a that the negative commandment of “you must not enter his house to seize his pledge,” is a negative commandment that is rectified by a positive commandment — and [that] positive commandment is “You must surely return.”
מִשָּׁרְשֵׁי הַמִּצְוָה. שֶׁהָאֵל בָּרוּךְ הוּא חָפֵץ בְּטוֹב בְּרִיּוֹתָיו וּזְכוּתָם, וְרָצָה שֶׁיְּלַמְּדוּ נַפְשׁוֹתָם בְּמִדַּת הַחֶסֶד וְהַחֶמְלָה לְמַעַן יִזְכּוּ לְטוֹב, וְכָעִנְיָן שֶׁכָּתַבְתִּי בְּפָרָשַׁת מִשְׁפָּטִים בְּמִצְוָה סו וּבְהַרְבֵּה מִצְוֹת.
It is from the roots of this commandment that God, may He be blessed, desired, in His goodness, the good of His creatures and their merit and wanted that they should teach themselves the traits of kindness and mercy in order that they merit the good. And [it is] like the matter that I wrote in Parashat Mishpatim in Sefer HaChinukh 66 and in many commandments.
מִדִּינֵי הַמִּצְוָה. מָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה בְּפֶרֶק הַמְקַבֵּל (ב"מ קיג, א) הַמַּלְוֶה אֶת חֲבֵרוֹ אֵינוֹ רַשַּׁאי לְמַשְׁכְּנוֹ, כְּלוֹמַר שֶׁלֹּא בְּבֵית דִּין, וְאִם מְמַשְׁכְּנוֹ חַיָּב לְהַחְזִיר לוֹ הַמַּשְׁכּוֹן אֶת הַכַּר בַּלַּיְלָה, וְאֶת הַמַּחְרֵשָׁה בַּיּוֹם. בַּמֶּה דְבָרִים אֲמוּרִים? שֶׁמִּשְׁכְּנוֹ שֶׁלֹּא בִּשְׁעַת הַלְוָאָתוֹ, אֲבָל מִשְׁכְּנוֹ בִּשְׁעַת הַלְוָאָתוֹ, כְּגוֹן הַמַּלְוֶה אֶת חֲבֵרוֹ עַל הַמַּשְׁכּוֹן, אֵינוֹ חַיָּב לְהַחְזִירוֹ לוֹ כְּלָל. וְעַד מָתַי חַיָּב לְהַחְזִיר לוֹ הַמַּשְׁכּוֹן? עַד לְעוֹלָם.
From the laws of the commandment is that which they, may their memory be blessed, said in the chapter [entitled] HaMekabel (Bava Metzia 113a) [that] one who gives a loan to his fellow is not permitted to take surety from him — meaning to say [if it is] not in court. And if he takes surety from him, he is obligated to return the surety — the bedding during the night, and the plow during the day. To what do these words apply? When he takes surety when it is not at the time of his loan. But if he takes surety at the time of his loan — for example, he lends to his fellow based on the surety — he does not need to return it at all. And until when does he have to [keep] return[ing] the surety? Forever.
וְאִם תִּשְׁאַל, אִם כֵּן הוּא, מָה יוֹעִיל לוֹ הַמַּשְׁכּוֹן לַמַּלְוֶה? יוֹעִיל לוֹ שֶׁלֹּא יִשָּׁמֵט הַחוֹב בַּשְּׁבִיעִית, דְּקַיְמָא לַן, הַמַּלְוֶה עַל הַמַּשְׁכּוֹן אֵין שְׁבִיעִית מְשַׁמַּטְתּוֹ, וּכְמוֹ שֶׁכָּתַבְתִּי בְּמִצְוַת שְׁמִטָּה לְמַעְלָה (מצוה תעז), וּכְמוֹ כֵן יוֹעִיל לוֹ לְעִנְיָן שֶׁאֵינוֹ נַעֲשֶׂה אוֹתוֹ מַשְׁכּוֹן מִטַּלְטְלִין אֵצֶל בָּנָיו שֶׁל לוֹוֶה, דְּקַיְמָא לַן, מִטַּלְטְלֵי דְּיַתְמֵי, לְבַעַל חוֹב לָא מִשְׁתַּעְבְּדִי, אֶלָּא אִם כֵּן הִקְנָה לוֹ בְּפֵרוּשׁ הַלּוֹוֶה לַמַּלְוֶה, כְּדֶרֶךְ שֶׁאָנוּ עוֹשִׂין הַיּוֹם בְּשִׁטְרוֹתֵינוּ, וּמַשְׁכּוֹן זֶה אַחַר שֶׁהוּא בְּחֶזְקַת הַמַּלְוֶה, אֲפִלּוּ מֵת הַלּוֹוֶה בְּעוֹד שֶׁהַמַּשְׁכּוֹן בְּבֵיתוֹ אֵינוֹ נַעֲשֶׂה מִטַּלְטְלִין אֵצֶל בָּנָיו, אֶלָּא שׁוֹמְטוֹ הַמַּלְוֶה וְנִפְרָע מִמֶּנּוּ. וְעוֹד יוֹעִיל לוֹ שֶׁאִם רָצָה לְהִפָּרַע מֵחוֹבוֹ, מוֹכְרוֹ וְנִפְרָע מִמֶּנּוּ אִם לֹא רָצָה הַלּוֹוֶה לִפְדּוֹתוֹ, שֶׁלֹּא אָמְרוּ לְהַחְזִיר עַד לְעוֹלָם אֶלָּא כְּשֶׁלֹּא רָצָה הַמַּלְוֶה לְהִפָּרַע מֵחוֹבוֹ. וְאִם הַמַּשְׁכּוֹן הוּא מִכֵּלִים שֶׁאֵינָם צְרִיכִים לִמְלָאכָה בַּיּוֹם וְלִכְסוּת בַּלַּיְלָה, אָמְרוּ זִכְרוֹנָם לִבְרָכָה (ב"מ שם ורמב"ם מלוה ולוה פ"ג ה"ו), שֶׁמַּנִּיחָן אֶצְלוֹ שְׁלֹשִׁים יוֹם, כְּדֵי שֶׁיּוּכַל הַלּוֹוֶה לְחַזֵּר אַחַר מָעוֹת שֶׁיִּפְרַע לוֹ, וְאַחַר שְׁלֹשִׁים יוֹם אִם לֹא פְּרָעוֹ מוֹכְרוֹ בְּבֵית דִּין. וְיֶתֶר פְּרָטֶיהָ מְבֹאָרִים שָׁם בְּפֶרֶק הַמְקַבֵּל בְּבָבָא מְצִיעָא.
And if you shall ask, “If so, what does the surety help?” — it helps that the debt not be withdrawn on the seventh year, as we hold [that] a loan with surety is not withdrawn by the seventh year, and as I have written concerning the commandment of the sabbatical year above (Sefer HaChinukh 577). And, so too, it helps with the matter that this surety does not become [classified as] movable goods with regards to the son of the borrower — as we hold that the [inherited] movable goods of orphans are not liened to the creditor, unless the borrower acquired it for the creditor explicitly — as is the way that we do it today in our contracts. And since this surety is in the possession of the creditor — even if the borrower dies when it is in his home — it does not become movable goods with regards to his sons. Rather, the creditor extracts it and he is paid [for the debt] from it. It also helps him that if he wants to be paid for his debt, he sells it and is paid from it — if the borrower does not want to redeem it. As they only said that he has to return it forever, if the creditor does not want to be paid from it for his debt. And if the surety is from vessels that are not required for work during the day and for cover at night, they, may their memory be blessed, said (Bava Metzia 113a and see Mishneh Torah, Creditor and Debtor 3:6) that we leave it with him for thirty days; so that the borrower can look for money to repay him. And if he has not paid for it after thirty days, [the creditor] sells it in court. And the rest of its details are elucidated in the chapter [entitled] HaMekabel in Bava Metzia.
וְנוֹהֶגֶת מִצְוָה זוֹ בִּזְכָרִים וּנְקֵבוֹת, בְּכָל מָקוֹם וּבְכָל זְמַן, וְהָעוֹבֵר עַל זֶה וְלֹא הֵשִׁיב אֶת הָעֲבוֹט עַל הַדֶּרֶךְ שֶׁכָּתַבְנוּ לְמַעְלָה בִּטֵּל עֲשֵׂה זֶה, מִלְּבַד שֶׁעָבַר עַל לָאו, כְּמוֹ שֶׁנִּכְתֹּב אוֹתוֹ בְּסֵדֶר זֶה (מצוה תקפו), בְּעֶזְרַת הַשֵּׁם.
And this commandment is practiced by males and females in every place and at all times. And one who transgresses it and does not return the pledge in the way that we wrote above has violated this positive commandment — besides having violated a negative commandment, as we wrote about this already, with God’s help (Sefer HaChinukh 586).