Hilchos Choshen Mishpat
Volume IV : Number 3
Repossession in Halacha
Is it permitted according to Halacha for a lender or a Bais Din to
involuntarily confiscate property from a delinquent debtor as repayment
for his debt?
There are many factors involved in answering these questions, as follows:
- It is forbidden for a lender to forcefully take money or property from
a borrower who has not repaid a loan, or from a guarantor who has
co-signed to help secure the loan, as payment for the debt. Not only may
he not enter his home or business for this purpose, it is also forbidden
to accost the borrower in public and force him to give over money or
property. Even if the borrower is known to be a difficult person, and the
lender feels that this is the only way that he will receive payment, he
may only file a claim against him in Bais Din, and may not take anything
from him by force.
On the other hand, if the debt was not caused by a loan but because of
other circumstances, such as a sale on credit, rent money owed, or salary
owed, and the claimant has not come to terms with the debtor and
rearranged the debt to be considered a loan (Zokef Olov Halva'ah), he is
permitted to take property from his debtor involuntarily. However, he
must immediately go to Bais Din to file a claim against the debtor. Also,
he may not raise his hand against, or injure the debtor in any way.
- If a loan becomes due and the borrower in unwilling to pay, Bais Din
may send their agent to enter his home and involuntarily confiscate some
of his money or property as payment for the loan. If the loan is not yet
due, but the borrower has made it clear that he has no intent to repay
ithe loan, an agent of Bais Din may take something that is outside of his
home, but may not enter the home to confiscate something and hold it as
collateral on the loan. However, the lender himself may not take the
borrower's property, even if the loan is due and the property is outside
of the home, as we stated above in Answer A. (1)
(1) It says in the Torah (Devarim 24:10) "When you lend your friend
anything, you may not go to his house to collect his debt, etc." The
Torah prohibits a lender from involuntarily collecting collateral or
money as payment for the loan from the borrower. This is true even if the
borrower is known to be very tough, and is denying that he owes the
money, as stated in the Gemara (Bava Metziah 113a), the Shulchan Oruch
(Choshen Mishpat 97:6), and the Ketzos HaChoshen (97:4, and 4:1).
Although the Shaar HaMishpat (quoted in the Pischei Teshuvah (4:1) is of
opinion that if the borrower is tough and is not willing to repay the
loan, the lender may involuntarily confiscate some of his property as
payment, since we are dealing with a Torah prohibition we should be
stringent and follow the opinion of the Ketzos HaChoshen that even in
this case it is not allowed.
Even an agent of Bais Din may not enter a borrower's home to collect a
debt involuntarily before the loan is due, unless the Bais Din decides
that the borrower is going to try to evade payment by hiding his assets,
as stated in the Tur (Siman 97) in the name of the Rif and the Ramah.
However, an agent of Bais Din may take collateral involuntarily from the
borrower even before the loan is due, if the confiscated property is
found outside of the borrower's home. This is true even if the agent of
Bais Din bodily takes it from the arms of the borrower, as stated in the
Shulchan Oruch (ibid. 6).
If the loan is due and the borrower is able to repay but is unwilling to
do so, an agent of Bais Din may enter the borrower's home and do whatever
it takes to force him to repay the loan, as stated in the Shulchan Oruch
there (15), and in the Chazon Ish (Choshen Mishpat 3:5).
However, it is clear from the Shulchan Oruch (Choshen Mishpat 97:14) that
money owed for reasons other than a loan, rather as a result of damages,
unpaid salary, etc., may be involuntarily confiscated by the person to
whom it is owed, from his debtor. This is true only if the debt was not
rearranged and made into a loan, as stated in Rema, Choshen Mishpat
67:14. Additionally, when it is permitted to take the actual money, it is
also permitted to confiscate property as collateral, as long as this is
done nonviolently. This is only true on condition that the person who
took the collateral proceed as quickly as possible to Bais Din, so that
they can place a value on the confiscated property, as stated in the
Shulchan Oruch and the Rema there (4), and as discussed in the Nesivos
Mishpat there (3).
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bet Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval. His columns have recently been compiled and published in a three volume work called Mishpetei HaTorah, which should be available from your local Sefarim store.
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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an AvBais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. HisColumn originally appears in Hebrew in Toda'ah, a weekly publication inJerusalem. It has been translated and reprinted here with his permission and approval.
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!
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