Is It Permitted According to Halacha to Pressure a Borrower to Repay His Debt, and How?

Is It Permitted According to Halacha to Pressure a Borrower to Repay His Debt, and How?

Is it permitted to pressure a borrower to repay his debt when he is having difficulty doing so? What is the source of the prohibition? How is it defined that the borrower is unable to repay the debt? What is the law when the lender is unsure whether the borrower has the means to repay the debt? Can one stipulate in advance, at the time of the loan, that it will be permitted to press for repayment of this loan? What is the law regarding debts arising from rent and the like? May the administrator of a gemach or the director of an organization that lent money press the borrower for payment? Can the borrower be compelled to work or to beg in order to repay his debt? And is the borrower obligated to do so on his own? May his salary be seized when it is needed to buy food for his wife and children?

The Source of the Prohibition

The Torah states (Shemot 22:24): “אִם כֶּסֶף תַּלְוֶה אֶת עַמִּי אֶת הֶעָנִי עִמָּךְ לֹא תִהְיֶה לוֹ כְּנֹשֶׁה” — “If you lend money to My people, to the poor person who is with you, you shall not be to him like a creditor.” The Gemara (Bava Metzia 75b) derives from this: “When Rav Dimi came, he said: From where do we know that one who is owed a maneh by his fellow and knows that he has nothing may not even pass before him? The verse states: ‘You shall not be to him like a creditor.’” In other words, a person who knows that the borrower is unable to pay his debt is taught by the Torah not only that it is forbidden to pressure him, but that it is even forbidden to pass before him, so that the borrower will not be embarrassed when he meets the lender and has no means to pay.

So too the Shulchan Aruch rules (Choshen Mishpat 97:2): “It is forbidden to press the borrower to repay when one knows that he has nothing; even to appear before him is forbidden, because he is ashamed when he sees the lender and his hand cannot reach to repay.”

There are several aspects of this halacha that require discussion, and we will elaborate on them in the following article.

When One Is Unsure Whether the Borrower Can Repay

The question arises: what is the law when the lender is unsure whether the borrower can repay the debt?

At first glance, since this is a doubt concerning a Torah prohibition, and the rule is that a doubt in a Torah matter is treated stringently, one should be stringent and, because of the doubt, not pressure the borrower.

However, from the wording of the Shulchan Aruch, which writes, “It is forbidden to press the borrower to repay when one knows that he has nothing,” it implies specifically when one knows that he has nothing; this is also the language of the Gemara. The Kesef HaKodashim (Choshen Mishpat 97:2) likewise writes that the prohibition applies only when it is certain that he cannot pay, but when the lender is in doubt, it is permitted to press the borrower to pay. The Minchat Chinuch (Parashat Im Kesef, mitzvah 67) similarly writes that perhaps the Torah did not prohibit the matter at all when one does not know the borrower’s situation, for a person does not know the hidden resources of his fellow; if so, in most loans it would not be possible to demand payment from the borrower. Therefore, the Torah prohibited this only when it is clear to him that the borrower’s situation does not allow him to pay.

Practical Halacha : it is proper to be stringent in a case of doubt unless there is an additional reason to permit it, for example debts not arising through a loan, as will be detailed below. In particular, nowadays there is a strong reason to permit in most cases, as will be explained.

Defining One Who Has No Means to Repay

We must define, however, what is considered a borrower who has no means to pay. The Kesef HaKodashim defines the matter as follows: anything that is left to a debtor under the law of “mesadrin le-ba’al chov” [that is, items that the beit din leaves to the borrower and from which the lender has no right to collect] is called “he has nothing.” Anything he has beyond that is considered “he has,” and it is permitted to press him.

The law of “mesadrin” is ruled in the Shulchan Aruch (Choshen Mishpat 97:23): “When the time of payment arrives and the creditor comes to collect his debt, we arrange for the debtor. How so? We say to the borrower: bring all the movable property that you have, and do not leave even one needle, etc.; and from all of it we give him food for thirty days, etc.; and we give him clothing appropriate for him for twelve months, etc.; and a bed to sit on, and a bed and bedding appropriate for him to sleep on, etc.”

The Shach (Choshen Mishpat 97:14) writes in the name of the responsum of Maharam Sasson (siman 216) that the borrower is even removed from his dwelling and it is given to the lender. The basis of the law that the borrower’s dwelling is not left to him is already stated in the responsa of the Rashba (vol. 1, siman 1143), and the Rema rules likewise (Choshen Mishpat 103:8). The Shaar HaMishpat (siman 60:4; siman 97:3) writes that this is the practice in all Jewish courts, that a person is removed from his home. In light of this, any borrower who owns an apartment may be pressed and pressured to pay, even if he has no money and no possibility of paying other than by selling the apartment.

Even a borrower who lives in a rented apartment and does not own his own home, if he has possessions beyond the items that are left to him under the law of “mesadrin,” is considered to have the means to pay, and there is no prohibition to press him. Likewise, if he has money left beyond what is needed for his own sustenance, even though he needs the money for the sustenance of his wife and children, one may demand that he pay. In the ordinary case, a borrower has more possessions or even money than the amount described, and he may be sued for payment. The fact that he is overdrawn at the bank is another debt that he owes, and one may demand that he pay this debt first.

However, it is possible to stipulate at the time of the loan that the law of “mesadrin” will not apply to this loan, as explained in the Shulchan Aruch (Choshen Mishpat 97:28): “If he stipulated with him that they will not arrange for him in this debt, his condition is valid.” In such a case, it will be permitted for the lender to press and tell the borrower to repay him money corresponding to the value of the assets and possessions in his possession, even if the borrower has no apartment of his own and has only very basic furniture in the rented apartment.

Is the Borrower Obligated to Borrow in Order to Repay His Debts?

Another question to discuss is whether the lender may demand that the borrower take a loan in order to pay his debts, or whether, as long as the borrower cannot obtain the money on his own, this falls under the prohibition of “you shall not be to him like a creditor.”

In order to answer this question, we must first clarify a prior issue: does the beit din have authority to obligate the borrower to borrow from others in order to repay his debts? And is the borrower himself obligated to borrow from others to repay this debt, or perhaps whenever he has no way to obtain the money, he is not obligated to take money as a loan in order to pay the debt?

The Shulchan Aruch (Choshen Mishpat 99:4) rules that a person is not obligated to borrow with interest from a non-Jew in order to repay his debts. The Perishah (Choshen Mishpat 99:4) infers from this that he is not obligated only to borrow with interest from a non-Jew, but if he can obtain an interest-free loan, he is obligated to borrow in order to repay his debts.

On the other hand, the Mordechai (Ketubot, remez 205) explains that beit din does not compel the borrower to borrow in order to repay a debt. Similarly, it is explained in the responsa of the Tashbetz (vol. 4, column 3, siman 17; see also Hagahot Maimoniyot, Ishut, chapter 12) that the borrower is not obligated to borrow in order to repay his debt.

Practical Halacha : it appears that a person who borrowed from the outset with the intention of “rolling over” the debt is obligated to do so, and the lender may press him to roll over the loan and borrow from others in order to repay his debts. Likewise, a borrower who is known to regularly “roll over” his debts is obligated to do so, since on that understanding he was lent the money. However, a person who borrowed on a one-time basis with the understanding that he would have money to repay the debt, and his plans went awry, cannot be forced to borrow and take on another debt in order to repay this debt.

Can One Stipulate in Advance That This Loan Will Not Be Subject to the Prohibition of Pressing?

Another point to discuss is whether it helps for the lender to stipulate at the time of the loan that he will be able to press the borrower and demand his debt.

In this case, it appears that such a condition is included in the category of stipulating against what is written in the Torah, and a condition that contradicts what is written in the Torah does not take effect. [See responsa of the Rivash, siman 484].

However, it is possible to stipulate that the borrower will not have the status of “mesadrin le-ba’al chov,” and therefore in practice the lender will be able to press him, as we explained that permission to press depends on the law of mesadrin le-ba’al chov.

Debts from Rent, Wages for Work, and the Like

Another point is whether the prohibition applies only to debts from a loan, or also to debts that arose not because of a loan, such as a debt of rent.

The Kesef HaKodashim (Choshen Mishpat 97:2) writes that the prohibition applies only to loan debts, whereas debts that did not arise through a loan are not subject to this prohibition. However, he concludes with the words: “Perhaps, nevertheless, it is proper to be careful.”

Practically speaking, one should be careful with other debts as well not to press when it is known that the debtor has no ability to pay. However, when there is only a doubt whether the debtor lacks the ability to pay, one may be lenient and press him to pay.

Demanding payment from an ordinary guarantor has the status of a debt not arising from a loan, and where it is not known whether the guarantor has the ability to pay, one may demand payment from him. But a kablan guarantor has the status of a regular borrower, whom it is forbidden to press (see Choshen Mishpat 97:14; 29).

The Administrator of a Gemach

There is room to doubt whether the administrator of a gemach [a charitable fund that provides interest-free loans], who demands payment from a borrower who has no ability to pay, violates the prohibition of “you shall not be to him like a creditor,” or perhaps since the money is not his and he is not demanding the money for himself, there is no prohibition.

Is the Borrower Obligated to Hire Himself Out and Work in Order to Repay His Debts?

Another question that must be addressed is whether the borrower is obligated to hire himself out and work in order to repay his debts.

It is clear that if the lender brings his claim in beit din, the beit din has no authority to compel the borrower to hire himself out for work in order to repay his debts, as ruled in the Shulchan Aruch (Choshen Mishpat 97:15). The source of this law is in the responsa of the Rosh (klal 78, siman 2), from a responsum of Rabbeinu Tam, who explained that forcing a person to hire himself out for work is considered like selling him as a slave. This is derived from the verse “and he shall be sold for his theft”: only regarding a thief, under certain conditions, did the Torah give beit din authority to sell him as a slave for six years. Coercion to work for a certain period is also included in the category of sale into servitude, which beit din has no authority to do in any other case.

The Rosh added that even according to Rabbeinu Eliyahu (cited in Tosafot, Ketubot 63), who holds that a person must hire himself out for labor in order to provide his wife’s sustenance, nevertheless a borrower is not obligated to hire himself out in order to repay his debt.

However, it still remains to discuss whether only beit din lacks the authority to compel him to find work in order to pay his debt, while he himself is obligated to hire himself out for work to repay his debts because of the rule “a wicked borrower does not pay” — meaning that a person who does not repay his debt is wicked, and he must do everything to avoid that definition. Or perhaps even he is not obligated in this, and he is obligated to repay only from money in his possession that is not needed for his basic living needs [according to the laws of mesadrin le-ba’al chov].

In the Shulchan Aruch HaRav (Laws of Loans, se’if 5) it is written that the borrower is not obligated to hire himself out for labor. (See Chazon Ish, Bava Kamma, siman 23.)

On the other hand, according to the Shaar HaMishpat (siman 97:3), cited in Pitchei Teshuvah (siman 97:5), the matter depends on a dispute among the Rishonim.

Practical Halacha : it appears that he cannot be obligated to hire himself out, but certainly the borrower himself must make every effort to pay his debts.

Collection from Funds the Borrower Needs for the Sustenance of His Household

Another question to clarify is the case of a borrower who owes money to others and has in his possession a sum of money that he earned from work, while the lenders wish to take his salary. He, however, claims that he needs the earnings for the sustenance of his household, and that he exerted himself to work for the food of his family.

As stated, a person is not obligated to begin working in order to repay his debts. But if he is already working and earning money, the creditors may collect his salary toward their debt. One need only leave him what he needs for food for one month and clothing for one year; the creditors, however, take precedence over the sustenance needs of his wife and children, as ruled in the Shulchan Aruch (Choshen Mishpat 97:23), that the law of mesadrin does not apply to the sustenance of his wife and children.

However, one must consider whether a person may claim that he is working only in order to use the money for the sustenance of his wife and children, and not to pay the creditors. The sides of the doubt are: do we say that since he is not obligated to work in order to pay debts, then even if he works for that purpose, the creditors cannot collect the debt before the money needed for the sustenance of his wife and children is paid; or do we say that since there is no law of mesadrin for his wife and children, the creditors take precedence?

In Ulam HaMishpat (Choshen Mishpat there, se’if 15) a novel ruling is given that the money the borrower earns from his work goes first to the sustenance of his wife and children, since he is not obligated to work in order to repay the debts, and only money remaining beyond that may be collected by the creditors. He brings proof from the Shulchan Aruch (Yoreh De’ah 253:12, cited below), but his words are novel and his proof requires examination.

Is a Borrower Obligated to Beg in Order to Repay His Debts?

Another question is whether a borrower who sees that he cannot pay his debts is obligated to collect donations in order to pay his debt, or whether he is not obligated to do so.

The Minchat Pittim and Ulam HaMishpat (Choshen Mishpat 97:15) write that a person is not obligated to collect money to repay a debt. Their proof is from the words of the Shulchan Aruch (Yoreh De’ah 253:12), which rules that if a poor person owes money to people and collected donations, the creditors cannot collect from these funds. The Rema adds that this is on condition that when he collected the funds he did not state that he owes debts to people, because if he did state that he also owes debts, the money was given to him also so that he would pay his debts. It is clear there that if charity was given to a person who owes money to others, the creditors cannot collect from the charity money he received. From this they proved that a person is not obligated to collect money in order to repay his debts.

However, there is room to dispute this proof, because there it is only explained that money given as charity for the purpose of the poor person’s sustenance cannot be collected by the creditors. But it is possible that he is obligated to collect money and state that it is for his debts, as the Rema wrote that if he stated that the money is intended for payment of debts, it may be collected. In addition, the Gra (Yoreh De’ah 253:18) disagrees with the Shulchan Aruch and holds that in any event creditors can collect from charity funds gathered by the borrower.

Indeed, in the responsa of Maharam Schick (Orach Chaim, siman 331), he writes that since there is a mitzvah upon the debtor to repay the debt, he is obligated to go door to door in order to fulfill this mitzvah, which is an obligation owed to others.

Even according to the above-mentioned Minchat Pittim and Ulam HaMishpat, the lender may stipulate at the time of the loan that if the borrower does not pay, he will need to go door to door [and this must be written in the promissory note in a binding and effective formulation].

Summary

It is forbidden to press a borrower to pay if he has no way to pay. If he owns an apartment, there is no prohibition, and likewise if he has possessions that can be sold beyond what halacha rules must be left to a debtor and which beit din does not collect from him. Therefore, nowadays it is uncommon to find a debtor whom it is forbidden to press.

When it is not known whether the debtor has money, there is a doubt whether it is permitted to press him; when there is another reason to permit, one may be lenient.

With debts not arising from a loan, there is a doubt whether the prohibition applies; when there is an additional consideration to permit, one may be lenient.

There is room to discuss whether the manager of a gemach or another body that lent the money may press the borrower, since the debt is not personally owed to the manager.

One cannot stipulate before a loan that it will be permitted to press for the debt, but one can stipulate that this debt will not be subject to the possibility of mesadrin, and then there will almost always be a situation in which the debtor has from where to pay.

One cannot force the borrower to work or to collect donations in order to repay his debt, but it is proper for him to do so.

Shulchan Aruch (Choshen Mishpat 97:2); Azamrah Lishmecha (issue 96).