Malveh veLoveh - Chapter 3

According to the Rambam, this applies even if she gives the collateral willingly. Seifer Me’irat Einayim 97:22 states that this prohibition also applies to a divorcee, but the Siftei Cohen 91:1 does not accept that decision.

For the Torah’s prohibition does not make any distinctions with regard to income. In his Commentary on the Mishnah (9:6), the Rambam explains the rationale for this prohibition. We fear that the widow will not want to leave her article and will therefore linger in the creditor’s domain and ultimately, the two will engage in sexual relations. Even if there is no inappropriate activity between them, we fear that others may gossip of such. This explains why, according to the Rambam, the prohibition applies even if the widow gives the collateral willingly.

The Ra’avad differs and maintains that the reason for the prohibition is that the heart of a widow is broken and the Torah did not want to cause her any additional anguish. Accordingly, if the widow willingly gives the collateral at the time the loan is given, the prohibition against taking collateral is not violated (Siftei Cohen 93:1). Moreover, the Beit Yosef (Choshen Mishpat 91) agrees that this concept applies if she gives the collateral willingly even after the loan was given. The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 97:14) rule according to the Ra’avad’s views.

Rabbi Akiva Eiger notes that with the exception of one opinion mentioned by the Shiltei Giborim, the Torah authorities do not confine this prohibition to clothes, and maintain that it applies to all types of articles.

Sefer HaMitzvot (Negative Commandment 241) and Sefer HaChinuch (Mitzvah 591) consider this as one of the Torah’s 613 mitzvot.

The court expropriates it from the creditor’s possession. In this context, the Rivash (Responsum 488) applies the maxim (Tamurah 4b): Whenever the Torah prohibits an action being performed, should one perform it, it is of no consequence. Seifer Me’irat Einayim 91:14-15, 23 states that the article need not be returned until it is required by the widow.

In that same responsum, the Rivash explains that if the money does not pay her debt, the court may expropriate her property from her. Although the Torah prohibits taking security, it gives the creditor the right to collect his debt.

I.e., in the instance of a loan that is not backed by a promissory note.

According to the same principles that apply to any other defendant. See Hilchot To’en V’Nita’an, Chapter 1.

This is the punishment given for the violation of any negative commandment. As long as the collateral is in the creditor's possession, he has the option of returning it and thus freeing himself from corporal punishment. If, however, the article is lost or destroyed, that option is no longer available and he is given lashes.
The Ra’avad differs with the Rambam’s ruling. The Rivash (loc. cit.) explains the Ra’avad’s view. The creditor is held liable for the return of the article and is required to make restitution if he does not return it. Hence, there is always a financial penalty involved. Therefore we follow the principle that whenever a transgression involves lashes and a financial penalty, the person is required to pay the financial penalty and is not given lashes (see Hilchot Geneivah 3:1). In this instance, the Shulchan Aruch (loc. cit.) accepts the Rambam’s view. The Siftei Cohen 93:4, however, mentions the Ra’avad’s approach. See also the commentary on Halachah 4.

Just as the Ra’avad differs with the Rambam regarding this concept in the previous halachah, he also differs in this halachah. In this instance as well, the Shulchan Aruch (Choshen Mishpat 97:6,13) follows the Ra’avad’s view.

The Maggid Mishneh explains that the Rambam’s wording is precise. As stated in Chapter 1, Halachah 7, objects that are not utensils are not equated with utensils even though they are used to produce food. Thus, a cow that plows is not included in the scope of this prohibition.

In his gloss to Halachah 4, the Maggid Mishneh states that the intent is not that these articles may not be taken as collateral at all, but that they may not be taken as collateral during the time they would be used to perform the desired activity.

I.e., a hand mill. A mill that is affixed in the ground - e.g., a water-mill or a wind-mill, is never given as collateral. They are only taken when expropriating landed property [Shulchan Aruch (Choshen Mishpat 97:6)].

From the Rambam’s wording in this and the following halachah, we see that he takes an intermediate position among the Torah authorities. There are some [the Ramah as quoted by the Tur (Choshen Mishpat 97)] who include in this prohibition even utensils used to earn one’s livelihood - e.g., a carpenter’s tools and the like. And others (Seifer Me’irat Einayim 97:16) who maintain that it includes only those utensils used directly to prepare food. Therefore a yoke used for cows that plow is not included.

Sefer HaMitzvot (Negative Commandment 242) and Sefer HaChinuch (Mitzvah 583) consider this as one of the Torah’s 613 mitzvot.
The Maggid Mishneh clarifies that this prohibition applies only with regard to taking security. If the debtor reaches a situation where his property is being expropriated, even utensils used to make food can be taken from him. We follow the guidelines mentioned in Chapter 1, Halachah 7.

See the notes on the previous halachah. The Ra’avad also objects to the Rambam’s ruling in this instance.

Food itself, however, may be taken as collateral [Shulchan Aruch (Choshen Mishpat 97:11)].

In his gloss to the previous halachah, the Maggid Mishneh emphasizes that even if the person has several of the same utensils, as long as he uses each one of them, they may not be taken as collateral.

For such a yoke was made up of two separate portions (Maggid Mishneh).

Sefer HaMitzvot (Negative Commandment 239) and Sefer HaChinuch (Mitzvah 585) consider this as one of the Torah’s 613 mitzvot.

From Chapter 2, Halachah 2, it appears that this law also applies when the agent of the court comes to expropriate property to pay the debt. This is a contrast to the opinion of Rabbenu Yitzchak Alfasi and other authorities.

Bava Metzia 113a derives this concept as follows: Deuteronomy 24:10 states: “When you are owed money by your colleague... you shall not enter his home to take collateral for it.” This obviously refers to the creditor. The passage then continues: “You shall stand outside.” This is a further inclusion, indicating that even an agent of the court must “stand outside.”

I.e., once an article is outside the borrower’s home, the agent of the court can take it by force, against the borrower’s will.

See the following halachah, which describes the scope of this mitzvah.

In this instance as well, the Ra’avad protests the Rambam’s ruling, explaining that whenever a situation involving both lashes and a financial penalty is involved, the person is obligated to pay the financial penalty and is not punished by lashes.
The Maggid Mishneh defends the Rambam’s position, explaining that although the principle cited by the Ra’avad is accepted by all authorities, this instance (and those mentioned in the previous halachot) are exceptions. The principle stated by the Ra’avad applies in an instance when the financial penalty constitutes restitution for the transgression performed - e.g., the person stole and paid for the article he stole. He was taking property belonging to a colleague to which he had no right with the intention of keeping it for himself. In this instance, the creditor has a claim on the debtor’s property and he is not taking that property with the intent of keeping it, merely to hold as security. Hence, he is not considered as a thief who must return stolen property. Were the security not to have been destroyed, the reason it would have to be returned is not an issue of monetary law, but rather a Scriptural decree. For that reason, it is considered a lav hanitak liaseh (“a prohibition that can be corrected by the performance of a positive commandment”) and not a lav hanitan litashlumim (“a prohibition for which restitution must be made”).
The Maggid Mishneh continues to explain that the time when the creditor becomes obligated to make restitution (the time when the collateral is destroyed) and the time when he incurs the penalty of lashes (the time he took the collateral) differ. Hence, we do not apply the principle that a person should not be required both to make financial restitution and receive the penalty of lashes.
The Maggid Mishneh concludes that despite this theoretical justification of the Rambam’s position, Makkot 16a appears to follow the Ra’avad’s view.

As reflected by the conclusion of this halachah, this refers to collateral given voluntarily after the loan was given. Collateral given at the time the loan was given is not included in these laws.

And does not have another article to exchange for the article taken as collateral [the Rambam’s Commentary on the Mishnah (Bava Metzia 9:13)].

I.e., it is impossible for the debtor to exist without it (Ibid.). If, however, the debtor does not need the article, it need not be returned to him. In this regard, he is considered to be wealthy (Maggid Mishneh).
The Maggid Mishneh continues, explaining that there are other commentaries who explain that the only articles that must be returned are garments, bed clothes and utensils used for the preparation of food. Other utensils - e.g., dishes and cups, and certainly, books, need not be returned even though the debtor needs them. The Rambam, however, does not accept this perspective.

The Maggid Mishneh notes that a plow is considered as an article used to prepare food. He explains that this clarifies that the intent of Halachah 2, which states that it is forbidden to take utensils used for the preparation of food as collateral, is that they cannot be held as collateral during the time they would be used. The Merkevet HaMishneh, however, states that a plow is not considered as a utensil used to prepare food.

This includes even a utensil that is not used to prepare food.

Sefer HaMitzvot (Positive Commandment 199) and Sefer HaChinuch (Mitzvah 587) consider this as one of the Torah’s 613 mitzvot.

Sefer HaMitzvot (Negative Commandment 240) and Sefer HaChinuch (Mitzvah 586) consider this as one of the Torah’s 613 mitzvot. The Maggid Mishneh states that a person who transgresses this commandment is not punished by lashes, because its violation does not involve a deed.

The translation of the verse - and the subsequent interpretation - is based on the Mechilta, which states that the creditor must give the debtor a tool used during the for the entire day, but may take it back from him at nightfall.

The Ramah (Choshen Mishpat 97:16) states that since a person is given a reward for performing this mitzvah, as Deuteronomy 24:13 states: “And it will be considered as righteous for you before God,” the court is not obligated to compel a person to observe it. Nevertheless, if the court feels there is ample reason, it may apply compulsion.

Note the Siftei Cohen 97:9 who states that even while the collateral is in the possession of the creditor, he is not allowed to make use of it.

Generally, debts are nullified at the conclusion of the Sabbatical year. Nevertheless, if the creditor has taken collateral, the portion of the debt for which collateral was taken is no longer considered outstanding and is not nullified (Hilchot Shemitah ViYovel 9:14).

Generally, the movable property in a deceased’s estate is not considered on lien to the deceased’s creditors, but instead becomes the property of his heirs (see Chapter 11, Halachot 7-8). In this instance, since the creditor had taken the collateral previously, it becomes his. Although he had to show special consideration to the debtor and continuously return the collateral to him, he is not obligated to show such courtesies to the debtor’s heirs.

With his consent.

Some texts of the Mishneh Torah add “and it need not be returned at all.” Since the collateral was voluntarily offered by the debtor at the time of the loan, it is considered as payment for the loan.
The commentaries question the Rambam’s position, asking: Why is taking collateral that a poor man gives voluntarily at the time of the loan is not prohibited, while taking collateral from a widow or taking utensils used to make food under such conditions is prohibited (Halachot 1 and 2)?
Among the answers given is that the Rambam’s rulings are dependent on the rationale for these halachot. One of the reasons given for the prohibition against taking collateral from a widow is that it is an act of mercy (Sefer HaChinuch, mitzvah 591). Similarly, the reason for the prohibition against taking utensils used to prepare food is obvious. The debtor needs them for his very existence. Hence, an exception is made with regard to these - matters and taking them as collateral is forbidden in all instances. With regard to other collateral, since it was given by the debtor voluntarily, we can assume that it is not essential to him. Hence it need not be returned (see Rambam LaAm).

He may even take a craftsman's tools. Although these are left to the debtor when his property is expropriated, the laws governing taking collateral are different and such articles may be given to the creditor (Maggid Mishneh). The Kessef Mishneh develops these concepts further, using them to resolve questions posed by the Tur (Choshen Mishpat 97).
To explain: The Tur notes an apparent contradiction between the Rambam's words, for the Rambam states that articles that the debtor needs should be left for him and also says that an article should be returned to the debtor when he needs it. If the debtor needs it, it should not be taken and so why must it be returned?
The Kessef Mishneh explains that the debtor may need his tools or other articles of this nature and they must be returned to him. These articles are not, however, absolute necessities that should not be taken as collateral.
The Kessef Mishneh does note a contradiction of sorts in the Rambam’s words, for he speaks of returning bed-clothes although he states that a bed should not be taken as security. The Kessef Mishneh explains that this could be speaking about a situation where the creditor erred and took security that he was not supposed to. Alternatively, that the debtor gave it to him willingly. Or it could be explained that different laws apply to bed-clothes than to the bed itself. Note the Maggid Mishneh who takes a different tact.

As partial payment for the debt. Since the debtor has the other utensil, the one he takes is not necessary for him.

As required when taking collateral.

If the creditor is unhappy with this arrangement, he may leave the collateral with the debtor and ask the court to expropriate the debtor’s property in payment of the debt.

I.e., it is not one of the articles the debtor is allowed to keep as stated in Chapter 1, Halachah 7.

For taking the security is considered as taking a new loan and the debtor is given 30 days to pay as stated in Chapter 13, Halachah 5. See Ra’avad. The Maggid Mishneh emphasizes that this law applies only when the creditor originally took the article as security. If, however, he takes the article as property that he is expropriating, he is not required to wait at all (see Chapter 22, Halachah 1).
The Shulchan Aruch (Choshen Mishpat 73:13) clarifies that if there is a possibility that the article given as security will spoil within the 30 days, it may be sold beforehand.

I.e., the court evaluates the article and supervises its sale. The actual sale need not be made in the presence of the court, as evident from Chapter 13, Halachah 3.

Although movable property left in an estate is usually not expropriated by a creditor (Chapter 11, Halachah 7-8), an exception is made in this case because they were already designated as security (see Halachah 5).

The Tur and the Ramah (Choshen M ishpat 97:14) quote opinions that maintain that the creditor may not take articles that are used to produce food from the guarantor.

The Shulchan Aruch (Choshen Mishpat 97:14) differentiates between an ordinary guarantor and an orev kablan (a guarantor whom the creditor can approach before approaching the debtor). The same rules that apply to the debtor apply to the orev kablan.

Without consulting the court.

He may not, however, use it himself even if he deducts a fee, to prevent suspicions from arising [Tur and Shulchan Aruch (Choshen Mishpat 72:1)].

For the debtor is benefiting from the creditor’s actions.