Immunities to Collateral
Picking up from last time, we were seeing what types of items could be taken for collateral, se’if sixteen of Choshen Mishpat 97 excludes the clothing the borrower is wearing, as well as any utensils s/he is currently using. The borrower also must be left (the Gemara had said) with a couch to sit on, a bed and mattress to sleep. All else is fair game for the court agent to confiscate.
In their times, says AH. Today, the court would have to evaluate what constitutes bare needs, and leave those with the borrower. In se’if twenty-six, we get more of a sense of what he means. He says the borrower will be told to bring all his assets to court, and the court will leave him with thirty days of food at a middle class level (AH thinks if he was used to eating richly, the court should account for that), twelve months’ of mid-level clothes, and basic furniture, in AH’s time, a chair, table, and bed with mattress and pillows. In addition, he will get shoes, his tallit and tefillin, but not any of his books, nor even a Torah scroll, even if he studies Torah full time.
Regularly Returned Collateral and the Sale of Collateral
Other than the collateral we discussed last time, where the lender had to return it whenever the borrower needed it, the lender would keep collateral for thirty days, then sell it in court (so the court can ensure he gets full value, not sells it quick and cheap, then still demands full payment from the borrower).
The collateral the lender returns never stops being collateral and therefore cannot be sold, unless the lender one time gives it back fully, says s/he is no longer taking it for collateral, then asks the court to recover the loan for him/her.
The issue of returning collateral takes AH to a few more halachot. Se’if nineteen extends the obligation to return a needed mashkon even to a wealthy borrower, such as if s/he has plenty of land but not much cash or movable goods. Should the borrower have other such movable goods, the need to return dissipates. Unless they are needed for the borrower’s wife or dependent minor children (not adult children, no matter how dependent).
Protecting One’s Rights
Se’if twenty warns the lender to return the collateral with witnesses, to warn the borrower to do the same. If the lender doesn’t, the borrower can claim his having the collateral shows he had paid off the loan; if the lender doesn’t warn the borrower, the latter can say s/he returned the collateral, can even ask for it back. Witnesses ensure we all know who has it and where we are in the process.
Se’if twenty-one points out a technical reason the courts would theoretically not need to involve themselves in overseeing the lender’s giving the collateral to the borrower when s/he needs it. Devarim 24;13 tells us God will bless the lender for returning the collateral, count it as a just/ charitable act. We have a general principle not to coerce observance wherever the Torah made the reward explicit, because the person can see what is being lost by not keeping the mitzvah.
Here, AH grants the courts the leeway to step in anyway, I think to protect the borrower.
Money Owed Isn’t Always a Loan
Last time, we said neither the lender nor agent of the court was allowed to enter the borrower’s house to take collateral, but se’if twenty-two limits the rule to loans. If one Jew owes rent--for a residence or having used some item, say a car--or another person’s salary for a job done, AH is sure the person owed the money may enter the other’s home (since this isn’t of a loan).
A guarantor of a loan similarly has no immunity to home entry, because the verse banned going into his, the borrower’s, house. Since these collections aren’t a function of the borrower’s clear poverty, I think, entry into the house does not carry the same resonance, and is therefore ok.
These categories arise again in the last se’if of the chapter, because it is not clear that those who owe these kinds of monies would have the rights to siddur, to a creditor leaving the borrower with basic necessities when collecting. I leave the details for other occasions.
It’s Not All Logical
Here in se’if twenty-two, AH pauses to say these rules are gezerat haTorah hana’alah mi-sechel enoshi, the Torah’s decree, above human intellect. Even financial laws can be more like chukkim, rules whose reason we do not understand, or not fully. He points to Tehillim 147;19-20, which says Hashem taught us mishpat, the kinds of laws we all understand, that we all see in non-Jewish legal systems as well. Says AH, they have only what human intellect can figure out, we have what Hashem taught us.
[At least two important points here. First, the more we emphasize/recognize the divinity of these laws, the more I would think we would avoid tampering with them. The Gemara says clearly, for example, that a borrower can make a condition not to have the usual strict liability for the item borrowed. But if that particular rule is set by the Divine, why should he be allowed to? Along similar lines, the Gemara sometimes refers to a Torah idea as a sevara, an idea we could have come to on our own, and we certainly seem to use kal va-chomer to logically extrapolate from the Torah’s basic rules. It seems to me to highlight a delicate dance in halachah, where we know and respect human intellect and insight, its ability to see valuable course of action, while also being aware and alert to our possession of a divine document, given us by God, an artifact of a process far beyond us, and therefore demanding only faithful obedience.]
The question is always which is which. Here, AH seems to want to warn us to put the rules for collateral-taking in the closer-to-chok category.
Don’t Let People Play the System
These rules lean in the borrower’s favor, probably because the majority of them were deeply impoverished, especially the ones where the lender felt the need to take collateral after the loan had been given. When instead the borrower has decided to wriggle his way out of paying, the courts need to step in, a process AH lays out in se’if twenty-five.
