Translation:Shulchan Aruch/Choshen Mishpat/97

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Paragraph 1- There is a positive commandment to lend poor Jews. It is a greater mitzvah than charity. A poor relative takes precedence over other poor individuals. Poor individuals in one’s city take precedence over the poor of another city. There is even a mitzvah to lend a rich individual who needs to borrow for some time, as well as to verbally encourage him and provide with appropriate advice.

Paragraph 2- One is prohibited from pressuring the borrower to pay back when he knows that the borrower does not have the resources. One is even prohibited from showing himself to the borrower because the borrower will be embarrassed when he sees the lender and he does not have the resources to pay back.

Paragraph 3- A borrower is prohibited from hiding his counterparty’s money and telling him to come back tomorrow when he will give it, if the borrower has the money now.

Paragraph 4- A borrower is prohibited from taking a loan and spending it for no reason and wasting it so that the lender does not have what to collect the loan from. If he does so, he is called wicked. If the lender is aware that this borrower has this trait, it is better not to lend him than to lend him and be forced to pressure him later and violate “lo siyeh lo kinoshe” each time.

Paragraph 5- If the lender comes to court to take collateral or collect from the borrower, the court should follow the law and not say, “so and so is poor and has nothing whereas so and so is rich and does not need it.” Rather, we do not act merciful in judgement.

Paragraph 6- If the lender comes to take collateral not at the time of the loan, he should not take the collateral on his own because if he were to do so he would violate a negative commandment. See above Siman 4. Rather, the court will send their messengers. Even the court’s messengers should not enter the borrower’s home to take the collateral. Even if the lender asks to enter the borrower’s home just to write down everything the borrower has, the court would not assist him. Rather, if he finds something outside the home, he can take it. The court’s messenger should take the collateral from the borrower by force and give it to the lender. Even outside the home, one cannot take a collateral on something that is used for food purposes if it is not the time of the loan, such as hand-mills which are moveable. Water-mills of the home, however, have the status of land and collaterals are not applicable. Rather, one can collect from them just like any other land, because the court does not take land as collateral. If, however, the lender himself entered the mill and took the upper mill, the iron, the wheels or the rotator, the mill is now movable and it has the status of food-vessels and must be returned at the time of work.

Paragraph 7- If the court sees that the lender is detaching the lower mill, or something similar, from its source, in order to evade his creditor or if he is uprooting his plantings or destroying his home to evade his creditor, the court can collect it from him at that time.

Paragraph 8- The food-vessels that we mentioned refers to those vessels that actually make food, such as mills, baking-troughs, pots used for cooking and a slaughtering-knife or something similar. If the lender took possession of these he must return them. Other craftsmen-vessels, such as a barber’s scissors or plowing cows, however, may be taken as collateral.

Paragraph 9- If the borrower had five mills, the lender cannot even take one as collateral. If the borrower only does work with one of them, the lender can take the others as collateral.

Paragraph 10- If a lender took possession of many food-vessels, he violates the commandment on each vessel. Even two vessels that are attached together to do one type of work, such as scissors used for cutting vegetables, would be a violation of two negative commandments.

Paragraph 11- A lender can take actual food as collateral so long as he leaves the appropriate amount that we give the borrower.

Paragraph 12- If the lender himself took the collateral, he is obligated to return it unless the person who took collateral was the treasurer for hekdesh or the poor. This only applies to food-vessels, just as we said with respect to the court-messenger. If, however, the lender took possession of other items, although he violated the negative commandment, what’s done is done and the lender does not have to return the item until he is repaid.

Paragraph 13- If the borrower gave the food-vessel on his own volition to the lender or the court-messenger, the lender may accept them.

Paragraph 14- One cannot take collateral from a widow, not at the time of loan, whether she is poor or rich. If one violated this and took possession of a widow’s clothing, we would force him to return it. If she confesses to the loan, she must pay, and if she denies it, she will swear. If the collateral was misplaced or burned prior to its return, the lender would receive lashes. When is it true that the lender is prohibited from taking collateral himself and even the court-messenger cannot enter the home to take collateral? With respect to the borrower. With respect the co-signer, however, one may take collateral by force without consulting with the court and he may enter the home to take the collateral- there are those that say that, notwithstanding the foregoing, with respect to taking food-vessels as collateral, there is no distinction between a borrower and a co-signer,- except in the case of a kablan co-signer, which has the status of a borrower. Similarly, if one’s counterparty has his wages in his possession, whether it his wages for him personally of his animal or home, the creditor may take collateral without consulting the court and he may enter the home to take collateral. If he converted the debt to a loan, it would be prohibited.

Paragraph 15- There are those that say that a court-messenger is only prohibited from entering the home to take collateral where the collateral is taken as security for lender’s money prior to the repayment deadline. If, however, the repayment deadline has arrived and the lender wants to collect his debt but the borrower does not want to pay back and the borrower is established as owning moveable items and is evading the court-messenger, the messenger may enter his home to take the collateral and make him pay back the debt because the repayment of a loan is a mitzvah and we can provide lashes to the point of death in order to have the mitzvah fulfilled. We would not, however, force the borrower to rent himself out or do some kind of work in order to pay back. Even if the borrower made a condition that the lender can take possession of the borrower’s self and they documented the condition, it would be of no effect and the lender would not be able to detain him or force him to work. This only applies where he does not have with what to pay back. If, however, he was with what to pay back, the court can detain him and strike him until the point of death and force him to pay. There are those that say that even where the borrower does not have with what to pay back, if the borrower had taken an oath to be detained until he pays back, he must keep his oath. See later at the end of the Siman.

Paragraph 16- In a case where one takes collateral from his counterparty in court or a case where he took possession by force or with the borrower’s permission, if the borrower is poor and the lender took possession of something he needs, there is a mitzvah to return the collateral at the time the borrower needs it. He returns a pillow at night so the borrower can sleep on it and a plow by day so the borrower can perform work with it. If so, what is the purpose of the collateral? In order to avoid having the debt voided at shmittah and to avoid having the debt qualify as moveable items in the possession of the borrower’s children. This enable the lender to be able to collect the collateral after the borrower dies. When is this true? Where the lender took collateral not at the time of the loan. If, however, he took collateral at the time of the loan he would not be required to return it. The mitzvah of returning collateral is a positive commandment whose reward is documented in the commandment and thus a human court cannot force compliance. If they want to force, however, they may do so.

Paragraph 17- When a court-messenger comes to take collateral he should not take items that are impossible to be given as collateral, such as the clothing on the borrower, the vessels he eats with or something similar. He must also leave the borrower with a bed to sit on, and an appropriate bed and mattress to sleep on. Anything the messenger can find, other than the aforementioned items, may be taken as collateral and the lender will return the daytime-vessels for the day and the nighttime-vessels for the night. Similarly, the borrower must return his craftsmen-vessels for the day.

Paragraph 18- If the lender has two of the borrower’s vessels, he can take one and return the other. How long does the taking and returning go on for? For eternity. If the collateral is one of the items that the borrower does not need and that we do not leave for the borrower, we leave the item by the lender for 30 days and after 30 days he can sell it in court.

Paragraph 19- if the borrower dies after the lender returned the collateral, he may seize the item from the borrower’s children and does not return it.

Paragraph 20- Even if the borrower is very wealthy with respect to land but only has these moveable items that the lender took as collateral, the lender must return them to him. If, however, the borrower has other moveable items so he does not need the collateral, the lender does not have to return them to him.

Paragraph 21- When the lender returns the collateral, he must return it with witnesses and he needs to warn the borrower not to give it back to him without witnesses because otherwise the borrower would be believed to say I returned it or I paid back the loan migu that I returned the collateral, so long as it is not before the repayment deadline.

Paragraph 22- The lender can never sell the item because he took it as collateral unless the lender were to return the item on the condition that he will not take it back as collateral. He returns the pillow even for daytime and the plow even for nighttime and can come to court to collect his debt.

Paragraph 23- When the repayment deadline arrives and the lender comes to collect his debt, we take stock for the creditor. How so? We tell the borrower to bring all the moveable items he has, without leaving out even one needle and even food-item vessels. We give the borrower 30 days’ worth of food from everything he has like an average person, even if he originally ate like a poor person, and 12 months’ worth of clothing. This does not mean the borrower can wear wool clothing or a gold hat. Rather, we would remove those items from him and provide him with 12 months’ worth of clothing appropriate for him as well as a bed to sit on and a bed and mattress and other items needs for a bed that are appropriate for him to sleep on. If the borrower is poor, we give him a bed and mat to sleep on. We do not given any of these items to his wife and children, even if they are minors he is obligated to feed. We let him keep his shoes and tefillin. If he is a craftsman, we give him two of each of his forms of craftsmen-tools. For example, if he is a carpenter, we give him two axes and two saws. If the borrower had many items of one type and fewer of another, we give him two of the type of which he has many and everything of which he has fewer. We do not buy vessels from the money of the items worth more to give to the borrower. If the borrower is a farmer or donkey-driver, we do not give him his oxen or donkeys. Similarly, if he was a sailor, we do not give him his ship, even if he has no food. These items are not vessels, but property, and they are sold with other moveable items in court and given to the creditor. Even if the borrower was a scholar, whose trade is Torah, we would not give him his books- even a sefer torah- because they are like other properties that the creditor may collect from. The same applies to one’s seat in shul, which is included in one’s properties, and the creditor may collect his debt from them.

Paragraph 24- It goes without saying that the borrower’s wife cannot take her future sustenance. Moreover, even if she took possession of his husband’s property, such as a case where the husband went overseas and she took possession of his properties so she could be supported from them, we would take the property away from her and give it to the lender because the women does not have the right to collect food from real property or moveable items until the lender collects the debt. Even if she preceded the loan and even if her husband went overseas and she borrowed via a document in order to eat, the food loan would not be collected until the document-holder collects first, notwithstanding the fact the documented food-loan preceded the loan of such document-holder. If the husband’s loan was oral and she borrowed orally or via document for food, whomever comes first to collect would take precedence. If they came together, they would split. If, however, the money from her dowry is still in her or her father’s possession, she can take possession of them for food. If the husband owed money to gentiles and they brought a claim against him via gentile laws and the woman came with her kesubah and had the gentile creditors removed because the secular courts’ rule is to have the women collect her dowry first, and a Jewish lender then comes to claim his debt and take away that which the woman collected, the lender is in the right because the kesubah and dowry are not supposed to be collected while the husband is alive as will be explained in Even Haezer Siman 53.

Paragraph 25- A creditor cannot collect from the clothing of the borrower’s wife and children and not from dyed clothing that were dyed for them, even if they have not yet worn it. The lender cannot collect from new shoes that the borrower purchased for them nor from books that he purchased for his children to learn from. Rather, they belong to the children.

Paragraph 26- When is this true? With respect to weekday-clothing. With respect to shabbos and festival clothing, however, the creditor may collect them. There are those that disagree. It goes without saying that if the wife and children have rings and gold and silver vessels, it would all go to the creditor, so long as the husband purchased it for her. If, however, the woman brought the items into the marriage, whether via melug or tzon barzel properties, the creditor cannot collect from her if it is known that it is property that she brought in or that the husband accounted for at the time of the marriage. If the circumstances are unknown, she would be believed with respect to clothing and jewelry because it is standard for a women to bring these in to the marriage. If she brought money as dowry into the marriage, the creditor can collect from them. There are those that say that if the dowry is still in her or her father’s possession, the creditor cannot collect from them. Even if the husband was captured and she redeemed him, the creditor would still not be able to collect from these properties.

Paragraph 27- When it comes to leaving properties for the borrower, there is no distinction between real property and moveable items. Even if the borrower only has real property, we would leave him what he needs for the aforementioned items.

Paragraph 28- If the lender made a condition with the borrower that they will not leave these items for him, the condition would be valid. This that the borrower put a lien on all his properties, however, would not be a considered a condition to nullify these rules because the borrower’s intention was only those properties the lender deserves based on Torah law, unless the borrower mentions an explicit condition on retaining these items. Even if the borrower were to write “from the clothing on my shoulders,” his intention is on a cloak worth 100 zuz that is not appropriate for him which will be sold and the proceeds will be used for appropriate clothing. If he says “on the condition that there should no rules of retainment on this debt” it would not work because he is making a condition against the Torah just like a case where he says “on the condition that shmitta will not void the loan.”

Paragraph 29- There are those that say that would not leave these items for a debt that is not via a loan, such as a personal rental, an animal rental or something similar if the debt was not converted into a loan. The same would apply where the lender collects from the co-signer that is not a kablan. There others that say that in these cases as well we would leave these items.

Paragraph 30- This that we leave items by the borrower is only where the borrower did not swear to pay back. If, however, the borrower swore to pay back we would not leave the borrower with anything. The borrower himself is obligated to sell everything he has- even a shirt, pants or a belt- to pay back his creditor. He should wallow in dirt and not violate his oath. See earlier in this Siman in seif 15 and earlier in Siman 73 with respect to someone who swears to pay back his counterparty.