Debt Collection
A Negative Commandment: “Do not be to him like a creditor”
It is explained in the Gemara (Bava Metzia 75b): “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 no means, is forbidden to pass before him? The verse states: ‘Do not be to him like a creditor.’”
So too the Shulchan Aruch rules (Choshen Mishpat 97:2): “It is forbidden to press the borrower for payment when he knows that he has no means; even to appear before him is forbidden, because he is embarrassed when he sees the lender and is unable to pay.”
This halachah must be discussed in several respects:
1. One who is unsure whether the borrower has the means to pay
The wording of the above Shulchan Aruch — “It is forbidden to press the borrower to pay when he knows that he has no means” — implies specifically when he knows that the borrower has no means. In a case where he is unsure whether the borrower has the means to pay, at first glance we would say that a doubt concerning a Torah prohibition is treated stringently.
However, the Kesef HaKodashim (there) writes that the prohibition applies only in a case of certainty, but where there is doubt it is permitted to press for payment. So too writes the Minchat Chinuch, Parashat Im Kesef, mitzvah 67, as follows: “Behold, the Rambam and the author of the Sefer HaChinuch wrote that if he knows that he has no means, he transgresses, etc. And it is possible that the Torah did not prohibit this at all when he does not know, for a person does not know the hidden stores of his fellow; if so, in most cases he would not demand payment. Therefore there is no prohibition at all, except when he knows that he has no means, etc.”
In practice, it is proper to be stringent unless there is an additional factor to permit it (as below, section 4).
2. Whether the borrower is obligated to borrow in order to pay his debts
It must be considered whether a lender may demand that the borrower take a loan in order to pay his debts, or whether this involves the prohibition of “Do not be to him like a creditor.”
Indeed, one must consider whether the borrower is independently obligated to borrow in order to pay his debts. It is explained in the Shulchan Aruch (Choshen Mishpat 99:4) that a person is not obligated to borrow with interest from a non-Jew in order to pay his debts; see there. The Perishah writes that he is not obligated only to borrow with interest from a non-Jew, but he is obligated to borrow from a Jew in order to pay his debts.
However, his words require analysis, for several Rishonim indicate that the borrower is not obligated to borrow in order to pay his debts — see Responsa HaRosh, rule 78, section 2; Responsa Tashbetz, part 4 (Chut HaMeshulash), column 3, section 17; and Hagahot Maimoniyot, Laws of Marriage, chapter 12.
Nevertheless, a person who originally borrowed with the understanding that he would “roll over” the debt is obligated to do so, and the lender is permitted to press him to roll over the loan and borrow from others in order to pay his debts.
3. A condition permitting the lender to press for payment
It must be considered whether it is effective for the lender to stipulate at the time of the loan that he may press the borrower and demand his debt. At first glance, such a condition is ineffective, since it is a condition contrary to what is written in the Torah.
See Responsa Rivash, section 484.
However, it is possible to stipulate that the borrower will not have the law of “mesadrin” applied to him, and then, as a result, the lender will be able to press him, as below, section 5.
4. Debts not incurred through a loan
Regarding debts not incurred through a loan (such as a rental debt, or payment for work performed for him, and the like), the Kesef HaKodashim (Choshen Mishpat 97:2) writes: “And likewise with debts that are not through a loan, but through rental and the like, this prohibition does not apply. Perhaps nevertheless it is proper to be careful,” end quote.
In a case where there is doubt whether the borrower has the means to pay, since according to the strict law there is no prohibition of “lo yigos” — “he shall not press” — and it is only proper to be careful, as above, here, where the debt is not due to a loan, it is permitted to press him.
5. Defining one who has no means to pay
As stated above in section 1, it is forbidden to press the borrower when one knows that he has no means to pay. Regarding the definition of a borrower who “has” and who “does not have,” the Kesef HaKodashim writes that anything that is left to a debtor under the law of “mesadrin lebaal chov” (that is, items that are left for the borrower and that the lender has no right to collect from) is considered “he does not have.” Anything he has beyond that is considered “he has,” and it is permitted to press him.
The law of “mesadrin” is explained in the Shulchan Aruch (Choshen Mishpat 97:23), as follows: “When the time for payment arrives and he comes to collect his debt, we arrange the debtor’s assets. 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.” See there for all the details of the law.
The Shach there, section 97, subparagraph 14, writes: “The same applies that we remove him from his house; so it is in the responsum of Maharan Sasson, section 216; see there.” Accordingly, if the borrower has an apartment, it is permitted to press him.
However, it is possible to stipulate that the law of “mesadrin” will not apply, as explained in the Shulchan Aruch there, paragraph 28: “If he stipulated with him that they shall not arrange assets for him with respect to this debt, his condition is valid.” In such a case, it will be permitted for the lender to press him whenever the borrower possesses any asset or object whatsoever.
6. The administrator of a free-loan fund
Regarding the administrator of a gemach, one must consider whether the prohibition of “Do not be to him like a creditor” applies to him, since the money is not his.
7. Whether the borrower is obligated to hire himself out and work in order to pay his debts
It is clear that if the lender claims his debt in beit din, the beit din is not permitted to coerce the borrower to hire himself out in order to pay his debts, as ruled in the Shulchan Aruch there, paragraph 15. The source of this law is in Responsa HaRosh (rule 78, section 2), from a responsum of Rabbeinu Tam, who expounded the verse: “וְנִמְכַּר בִּגְנֵבָתוֹ” — “and he shall be sold for his theft” (Shemot 22:2), meaning for his theft, but not for repayment of his debt; and compelling him to hire himself out for work is like selling him as a slave, and he may not be coerced to do so. It is further explained there in the Rosh that even according to Rabbeinu Eliyahu, cited in Tosafot (Ketubot 63), who holds that a person is obligated to hire himself out for work in order to support his wife, nevertheless a borrower is not obligated to hire himself out in order to pay his debt.
One must consider whether only beit din cannot coerce him, but he himself is obligated to hire himself out for work in order to pay his debts because of “לווה רשע ולא ישלם” — “The wicked borrows and does not pay” (Tehillim 37:21), or whether even he himself is not obligated in this, and he is obligated to pay only from money in his possession that is not needed for his basic livelihood (under the law of “mesadrin lebaal chov”).
In Shulchan Aruch HaRav, Laws of Loans, paragraph 5, it is written that the borrower has no obligation to hire himself out for work.
However, the Shaar HaMishpat (section 97, subparagraph 3), cited in Pitchei Teshuvah (section 97, subparagraph 5), maintains that the matter depends on a dispute among the Rishonim.
In practice, it appears that he cannot be obligated to hire himself out, but certainly the borrower himself must make every effort to pay his debts.
A borrower who is known to be accustomed to “rolling over” his debts is obligated to do so, since the loan was given to him on that understanding.
8. Collection from funds the borrower needs for the support of his household
A borrower owes money to others and has in his possession a sum of money that he earned through work. The lenders wish to take his salary, while he claims that he needs the earnings to support the members of his household.
As stated, a person is not obligated to begin working in order to pay his debts. But if he is in any event working and earning money, the creditors are entitled to collect it toward their debt.
It is explained in the Shulchan Aruch (section 97, paragraph 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 work and use the money for the support of his wife and children, and not pay the creditors.
The sides of the doubt are as follows: Shall we say that since he is not obligated to work in order to pay debts, then even if he works, the creditors cannot collect the debt first before the money needed to support his wife and children is paid; or shall we say that since there is no law of mesadrin for his wife and children, the creditors therefore take precedence.
In Ulam HaMishpat (Choshen Mishpat there, paragraph 15), he innovated that money the borrower earns through his work goes first to support 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 brought proof from the Shulchan Aruch, Yoreh Deah 253:12 (cited below), that just as the borrower is not obligated to collect money to repay a debt, so too he is not obligated to work. His words are novel, and his proof requires analysis, as we shall write below.
9. Whether a borrower is obligated to beg in order to pay his debts
The Minchat Pittim and Ulam HaMishpat write that a person is not obligated to collect money for repayment of a debt, and their proof is from the Shulchan Aruch, Yoreh Deah (253:12), as follows: “One who needs others and goes around seeking his livelihood, and they gave him charity, the creditors cannot collect from what he gathered as charity. Rema: Unless it is written in his collection document that he owes others, for then they gave him with this in mind, that he should pay.”
It is explained 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 pay his debts.
These words require analysis, because there it is only explained that they cannot collect from the charity funds he received; but it is not explained that he is not obligated to go and collect money from people and tell them that he is collecting the money for debts that he owes, as the Rema writes there that if it is written in the borrower’s recommendations (“in his collection document”) that he is collecting for repayment of his debts, the creditors may collect. Also, the view of the Vilna Gaon (Yoreh Deah there, subparagraph 18) is that creditors may collect in any case from the charity money the borrower gathered.
Indeed, in Responsa Maharam Shik (Orach Chaim, section 331), he writes that since repayment to a creditor is a mitzvah, he is obligated to go door to door in order to fulfill this mitzvah, which is an obligation toward others; see there.
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 have to go door to door [and this must be written in a binding and effective formulation].
