Being Lax about Repaying a Debt
18. Unfortunately, many people are lax about repaying their debts. Sometimes they actually do not have money to repay, but often they are remiss in getting the money or have misconceptions that there is no need to perform the mitzvah of repaying a debt. They think it is like some other rare mitzvos that not everyone has a chiyuv to perform, such as reishis hageiz or pidyon peter chamor... or Birkas Hachamah...
19. They often tell themselves they do not have money to pay back, yet at the same time, they spend money on all sorts of luxuries beyond what they need to live or on hiddurim for other mitzvos, e.g., “chaburah matzos” or a beautiful esrog.
20. Repaying evil for good. Sometimes, the borrower forgets about his debt to the lender, who did him a favor when the borrower came to request a loan with all sorts of promises that he would pay back on time. Instead, the borrower repays the lender’s favor with wickedness and views the lender unfavorably for demanding the money that he deserves. This causes people not to want to give loans in the first place; thus, it is necessary to bring up this topic and demonstrate the chiyuv.
21. Logic. A borrower must repay his debt to his creditor by the time they determined. This is a logical result of the chiyuvim bein adam lechaveiro (תוס' קידושין י''ג : ד''ה מלוה) if he has money to repay (see below, 36). If he has no intention to repay, he is a thief and must return the money due to the mitzvah of “והשיב את הגזלה” (אמרי בינה חו''מ דיני גבית חוב סי' ב').
Mitzvah to Pay Off a Debt
22. Mitzvah. Besides for the logic that a borrower has to repay his debt, there is also a mitzvah: in Chazal’s words, “פריעת בעל חוב מצוה.” Debtors can be compelled to fulfill this mitzvah in the same way people can be compelled to fulfill other mitzvos (שו''ע חו''מ ע''ז סט''ו).
23. Source. Some Rishonim hold the source for this is the posuk (ויקרא י''ט), “הין צדק,” on which Chazal say, “Your ‘yes’ [‘הן’ – a play on the word ‘הין’] and your ‘no’ should be with integrity.” Thus, a borrower must repay his debt to fulfill the pledge that he originally made to do so (רש''י כתובות פ''ו . ד''ה פריעת בע''ח). Others say the source is the posuk, “האיש אשר אתה נושה בו יוציא אליך את העבוט,” which implies that a lender can force the borrower to provide collateral (שיטמ''ק שם בשם תוס').
24. Withholding someone else’s money. Someone who withholds money, e.g., he borrows money but is an aggressive, tough person who does not pay back when his creditor asks for the money, transgresses the lav of (ויקרא י''ט, י''ג) “לא תעשוק רעך” (רמב''ם פ''א גזילה ואבדה ה''ד, שו''ע חו''מ סי' שנ''ט ס''ח).
25. “Come back later.” If a borrower has money to repay but puts off his creditor by saying, “Come back later,” even if he sincerely plans on paying eventually and does not transgress “לא תעשוק,” he transgresses miderabanan the posuk (משלי ג', כ''ח), “אל תאמר לרעך לך ושוב ויש אתך” (שו''ע סי' צ''ז ס''ד).
26. “A rasha borrows and does not pay back.” A borrower who has money to repay but does not want to is called a rasha, as the posuk (תהילים ל''ז, כ''א) says, “לוה רשע ולא ישלם.” Also, someone who borrows money and spends it unnecessarily and depletes it until he has nothing left for his creditor to collect is called a rasha (שו''ע סי' צ''ז ס''ד).
Having a Plan How to Repay Debt
27. A borrower needs to have a plan how he will repay a debt. If he does not know how he will repay, it is better for him to minimize his expenses and live meagerly rather than borrowing money.
28. Knows in advance he won’t have money to repay. A person who borrows money knowing from the start that he will not have a way to repay the loan also falls under the posuk, “לוה רשע ולא ישלם” (רבינו יונה אבות ב', ט'). If someone knows he will be able to pay, but not by the agreed upon due date, perhaps he is not called a rasha, but he transgresses “הין צדק” (מו''ר בפתחי חושן הלואה פ''ב הע' כ''ו).
29. Gemach cycling. One must know at the time of a loan how he will have the ability to return the money, or at least a reasonable-sounding plan. If he does not have a clear strategy and plans to borrow from gemachs to repay, he also falls under the posuk, “לוה רשע ולא ישלם” (הסטייפלער, תולדות יעקב עמ' קצ''ט).
30. Bitachon. The poskim discuss whether a person may borrow money and have bitachon that he will be able to repay it. Some hold if this same person would lend money with bitachon that he will get it back, he may also borrow money and rely on his bitachon (ספר הזהרו בממון חבריכם, מעיינה של תורה פ' בהר עמ' קמ''ט). Others hold even such a person should not borrow relying on his bitachon in Hashem (ספר חסידים שי''ח).
31. For Shabbos and Yom Tov expenses, one may borrow money relying on his bitachon (ב''ח או''ח סי' רמ''ב, שעה''צ שם סקי''ב). However, some say this is only if he estimates that he will have money to pay back – it all depends on the circumstances (שעה''צ שם).
Old Debt
32. Even if a lender did not claim money from his borrower for several years, we do not assume that shows he forgave the loan; the borrower must still repay the loan when he has the money (שו''ע סי' צ''ח ס''א). Even if the borrower is poor and the lender is rich and does not need the money, the borrower must repay the loan (שו''ע סי' צ''ז ס''ה).
33. Yiush over a debt. Even if the lender was heard saying words that indicate he gave up on the loan, e.g., “It’s a pity about the monetary loss,” it is not yiush. Since a creditor can never be sure that a debtor will pay back, he made the comment out of uncertainty, but he did not actually have yiush (שו''ע שם). However, if it is clear that he gave up hope, e.g., he told someone that he is confident he will never get this money back, it is considered yiush and the borrower is no longer obligated to repay (ע''פ הרמ''א חו''מ סי' קס''ג ס''ג).
34. Statute of limitations. Nowadays, many countries have statute of limitations laws that give a certain amount of time for a creditor to claim money he is owed, after which he can no longer make a claim. However, dina demalchusa dina does not apply here, and a creditor can always claim his money in accordance with the halachah (מו''ר בפתחי חושן הלואה פ''ב הע' ע''ב).
35. Bankruptcy. Even if a person declares bankruptcy and is absolved of many types of debts by the secular law, this does not change the halachah, and he must still repay people he owes when he gets money, assets, or the like, even if many years have passed. Dina demalchusa dina does not apply here (שם הע' ס''ג).
Borrower Has No Money to Pay
36. The application of many halachos depends on whether or not the borrower has money to repay [“ein lo” vs. “yeish lo”]. A borrower is considered to have money to repay if he has more than the arrangement made for a debtor [“mesadrin lebaal chov”].
37. The arrangement for a debtor leaves a debtor with enough money to buy: food for himself – not his wife and family – for 30 days like an average person in the city; appropriate clothes for himself for 12 months like an average person in the city; a bed; pillows, blankets, and linens that he uses; tefillin; and, if he is a craftsman, two of each type of tool for his craft (שו''ע ורמ''א סי' צ''ז סכ''ג). Whatever he has beyond that is considered available to pay off a debt. Nowadays, borrowers usually have much more than that minimum – possessions, furniture, housewares, jewelry, the house they live in, etc. (ש''ך שם סקי''ד). Thus, people today nearly always have the status of “yeish lo.”
38. Do we force the borrower to work? A borrower who falls under the category of “ein lo” is not forced to hire himself out or to do any work in order to repay (סי' צ''ז סט''ו). If he normally works or hires himself out but now does not want to since he knows his creditor will take his earnings, the dayanim can give him a penalty as they see fit, beyond what is strictly mandated, so that he will work and repay his debt (רדב''ז ח''א סי' ס'). Even if we do not force a borrower to work, he is personally obligated to work to fulfill the mitzvah of paying off a debt (שער משפט סי' צ''ז אות ג', פתחי תשובה שם ס''ה). Someone defined as a “yeish lo” certainly must work to pay off a debt.
39. Soliciting tzedakah to pay off debts. If a person who does not normally collect tzedakah for his livelihood is thrust into debt, he does not need to go around soliciting tzedakah to pay off his debts if he is defined as an “ein lo” (מנחת פתים סי' צ''ז סט''ו, שו''ת שבט הלוי). However, if he is technically a “yeish lo,” i.e., he has more than the basic arrangement for a debtor, just he does not want to pay, he must solicit tzedakah to pay back his debts (נתיבות המשפט סי' פ''ו חי' סק''א). If he is accustomed to soliciting tzedakah and that is his regular livelihood, he certainly must take tzedakah to pay off his debts.
Issur to Demand Payment if the Borrower Has No Money
40. If a lender knows the borrower has nothing to pay back [no money, possessions, or real estate] and is defined as an “ein lo,” it is an issur deoraisa for him to demand payment and pressure the borrower, even after the due date arrives, as the posuk (שמות כ''ב, כ''ד) says, “לא תהיה לו כנושה” (שו''ע סי' צ''ז ס''ד). This means, do not use a loan to wield power over a debtor by asserting yourself as the creditor and causing him to feel shame that he cannot afford to repay.
41. Coming near him. In the above scenario, the creditor may not even come near the debtor without saying anything since that would cause the debtor to be afraid and ashamed that the creditor will demand his money (שו''ע שם, שו''ע הרב). If they often cross paths, e.g., they daven next to each other in shul, the creditor can come near the debtor and does not need to relocate (ע''פ ערוך השלחן).
42. Unsure if he can repay. If a lender is not sure whether or not the borrower has money to pay back, he may claim his money. The issur is only when he knows with certainty that the lender does not have money to pay him back.
43. Suspects he forgot. If a lender suspects the borrower has not repaid because he forgot about the loan or its due date, he may remind the borrower about the debt or due date, even if he knows the borrower does not presently have the money, as long as it is a gentle reminder and not a demand (מו''ר בפתחי חושן פ''ב הע' י''ט).
