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Bava Metzia, 113

1) SEIZING AN OBJECT AS COLLATERAL FROM A DEBTOR

QUESTION: The Mishnah states that a creditor may not seize, on his own accord, an object as collateral from his debtor. The Gemara quotes Shmuel who says that although a Shali'ach of Beis Din is permitted to seize an object as collateral on behalf of a creditor, he is not permitted to enter the debtor's house in order to take the collateral.

This Halachah, that a creditor is not permitted to seize an object as collateral from the debtor, seems to contradict another Halachah which states that "Avid Inish Dina l'Nafshei." The Gemara in Bava Kama (27b) teaches that a person who is owed money is entitled to seize what is owed to him by force, without first summoning the other party to Beis Din. If we rule that "Avid Inish Dina l'Nafshei," then why may a creditor not seize a Mashkon from a debtor? (Rishonim, cited by the RAN, page 69a of the pages of the Rif)

ANSWERS:

(a) RABEINU TAM answers that the Torah prohibits forceful usurpation only when the object is being seized as collateral. If the object is being seized as *payment* for the debt, then seizing it is permitted.

The KETZOS HA'CHOSHEN (97:2) raises an objection to this answer. He says that only Beis Din may make collect an object as payment on behalf of a creditor, because the object's value needs to be appraised. When a creditor seizes the object on his own accord, no proper appraisal is being done, and thus it cannot be considered a Halachicly valid collection.

(b) RABEINU TAM offers an alternative answer. He suggests that when the Gemara in Bava Kama permits a person to seize an object that is owed to him, it only permits him to seize an object that rightfully belongs to him (for example, someone stole an object from him, and now he wants to take it back by force). The Torah does not permit collecting a debt by seizing an object that belongs to the debtor.

The RIF (in Teshuvos) states that in a case where the debtor is known to be a dishonest, brazen, or extremely difficult person who refuses to pay his debt, the Torah does *not* prohibit a Shali'ach of Beis Din from entering the debtor's home to take an object as collateral. This is also the view of the RAMAH (as cited by the SHILTEI GIBORIM and the TUR (CM 97:26), who writes that the Torah prohibits a Shali'ach of Beis Din to enter the house of a debtor only when there is some other way of seizing an object (or land) as collateral. The Shiltei Giborim and the Nimukei Yosef write in the name of the SEFER HA'TRUMAH that this, however, should not be done except in extreme circumstances ("she'Ein Lanu Ko'ach la'Akor Mitzvah Zu Ki Im b'Koshi Gadol").

OPINIONS: The Gemara says that the Shali'ach of Beis Din is not permitted to enter the house of the debtor in order to seize an object as collateral, but he is permitted to seize an object from the debtor when he finds him outside of his house. The creditor himself is not allowed to seize an object as collateral even when he finds the borrower out of his house.

Why is the creditor prohibited from seizing an object without entering the debtor's house? The verse (Devarim 24:10) specifically says that he may not enter the debtor's house to seize an object!

(a) TOSFOS (113a, DH Eima Lo) asserts that the prohibition for the creditor to seize a Mashkon from the debtor when he finds the debtor outside of his house is only an Isur d'Rabanan, because mentions only that he may not enter the debtor's house. As the Gemara says (according to the Girsa of Tosfos), the Rabanan prohibited the creditor from seizing an object from the debtor outside of his house in order to ensure that he will not enter the debtor's house to seize it (and thereby transgress an Isur d'Oraisa).

(b) The Acharonim (LECHEM MISHNEH) infer from the words of the RAMBAM (Hilchos Malveh v'Loveh 3:4) that he holds that it is Asur mid'Oraisa to seize a Mashkon from the debtor when the creditor finds him outside of his house. (According to the Rambam, when the Gemara says that he may not seize a Mashkon from the debtor outside of the debtor's house because he might enter the house, it is giving a reason for the Isur d'Oraisa (TOSFOS YOM TOV; see ARUCH HA'SHULCHAN 97:6).) This is also the view of the TOSFOS RID.

The Acharonim (NESIV HA'CHESED 7:5, cited by YOSEF DA'AS) explain that the Rambam's view is based on the Sifri (to Devarim 24:10). The Sifri states, "We only know that the Isur applies in a case where the creditor enters the house of the debtor. How do we know to include in the Isur a case where the creditor seized an object from the debtor outside of his house? The Torah writes the additional words, 'la'Avot Avoto,' to include in the Isur seizing an object from the debtor even outside of his house." (Even though the verse specifically says that it is prohibited to enter the house of the debtor, this is Lav Davka (S'MA to Choshen Mishpat 97:7). Alternatively, taking an item directly from the debtor's hand is considered like taking it from his house (EVEN HA'AZEL DH v'Nir'eh).)

113b

QUESTION: Our Gemara describes the amount and type of supplies that a creditor must leave for the debtor when he collects his debt from the debtor's assets.

How is this Gemara to be reconciled with the well-known principle that a creditor "may collect from a debtor even the shirt on his back" (Bava Kama 11a)? That principle implies that the creditor is not required to leave anything for the debtor!

ANSWERS:

(a) RABEINU TAM (in TOSFOS 114a, DH Mahu) indeed rules, based on the Gemara in Bava Kama, that "Ein Mesadrin l'Ba'al Chov" -- we do not require the creditor to leave anything for the debtor. He maintains that the Rabanan and Raban Shimon ben Gamliel here argue whether or not we are "Mesadrin l'Ba'al Chov," and that the Halachah follows Raban Shimon ben Gamliel.

(b) The RIF, RAMBAM and others rule that the creditor must leave the debtor with his basic necessities. TOSFOS in Bava Kama (11a) and the RAN here explain that the Gemara in Bava Kama is referring to a case in which the debtor has a spare shirt. The creditor may take that shirt from the debtor since the debtor still has a shirt with which to cover himself.

(c) The RAMBAN and RASHBA answer that the Gemara in Bava Kama is referring to a case in which the creditor and debtor stipulated in the Shtar that the creditor would be entitled to collect the shirt off of the debtor's back, thus making it a binding condition in the loan.

(The Rashba answers further that perhaps the Gemara in Bava Kama agrees that we are "Mesadrin l'Ba'al Chov," and it is merely exaggerating when it says that the creditor may collect even the shirt off of his back.)