Rambam - 3 Chapters a Day

Sefer HaMitzvot (Positive Commandment 197) and Sefer HaChinuch (Mitzvah 66) include this as one of the 613 mitzvot of the Torah.

The commentaries question why the Rambam mentions lending only to the poor, for as reflected in Bava Metzia 7la and Sukkah 49b, it is also a mitzvah to lend to a wealthy man at the time he needs a loan. Significantly, when stating this concept, the Tur and the Shulchan Aruch (Choshen Mishpat 97:1) also mention the mitzvah of lending to a wealthy person in temporary need.
Kin’at Eliyahu explains that the Rambam could have been referring to the wording used by the proof-text, but would in fact consider it a mitzvah to lend to a rich person in temporary need. Compare to Hilchot Matnot Aniyim 9:15.

Sefer HaMitzvot, loc. cit., states that a person who has not yet faced the shame of asking others for help feels much greater suffering asking for alms than a person who has made such requests previously. See also Hilchot Matnot Aniyim 10:7, which considers giving a loan as the highest form of charity.

Our addition of these bracketed phrases is based on Hilchot Matnot Aniyim 10:3. Note how the Rambam employs this proof-text as a source for harsh criticism against a person who refrains from giving charity.

Sefer HaMitzvot (Negative Commandment 234) and Sefer HaChinuch (Mitzvah 67) include this as one of the 613 mitzvot of the Torah.

Sefer HaMitzvot (Positive Commandment 142) and Sefer HaChinuch (Mitzvah 476) include this as one of the 613 mitzvot of the Torah.
In his Hasagot to Sefer HaMitzvot, the Ramban differs and maintains that the intent of the verse is that one may press a gentile for payment, but not a Jew. He interprets the verse as meaning that pressing a fellow Jew for payment violates both a positive and a negative commandment. The Maggid Mishneh refers to this view in his gloss.
The Lechem Mishneh questions the proof-text that the Rambam cites, noting that the verse refers to the nullification of loans in the Sabbatical year.

Sifri on the above verse.

The Even HaEzal interprets this statement as a continuation of the previous halachah. If unwittingly, you demanded payment from a colleague who did not have the means to pay his debt, from then onward you are forbidden to appear before him.

Avot 2:12.

See Hilchot Sanhedrin 20:4, which states:
Similarly, in financial suits, we do not show mercy on the poor. [A judge] should not say: “He is poor and the plaintiff is rich; since both I and the rich man are obligated to sustain the poor man, I will vindicate his claim in this judgment, and he will thus derive his sustenance honorably.” With regard to this, the Torah has warned us [Exodus 23:3]: “Do not glorify a poor man in his suit.”
Indeed, Sefer HaMitzvot (Negative Commandment 275) considers it to be one of the 613 mitzvot of the Torah.

Movable property is expropriated before landed property because movable property is considered equivalent to money itself. The reason is that it can be sold easily and converted into ready cash. Selling landed property, by contrast, is a more involved matter. Hence it is not considered as cash.

See Chapter 22, Halachah 1, which indicates that the decision whether or not to issue this ban is given to the creditor.

This is a legal device employed by the Geonim to deter the debtor from hiding movable property that he owns and claiming total bankruptcy. We do not, however, require the debtor to take an oath that he does not own movable property [Ramah (Choshen Mishpat 101:10)].

In one of his responsa, the Rambam writes that if the only landed property the debtor owns is the house that he lives in, and it is impossible to divide that property, he is allowed to maintain possession.

We do not say that since it is on lien to the prior creditor, it should be left in the debtor’s possession until that loan becomes due. The rationale is, as the Rambam proceeds to state, that since the property can always be expropriated from the creditor to whom it was given, we give him the opportunity to benefit from the property in the interim.

We suspect that he is merely trying a ruse to maintain possession of the articles, and that in fact they belong to him. We assume that “everything in a person’s possession belongs to him.”
The Maggid Mishneh questions: The debtor has the potential to take the article and give it to another person as a present. Hence, based on the principle of miggo - i.e., had he desired to defraud the creditor, he would have had a more effective manner of doing so - his claim should be accepted. In resolution, he quotes the explanation of the Ramban that the principle of miggo is not employed when there is a chazzakah - a presumption accepted to be true - that opposes it. In this instance, the concept that “everything in a person’s possession belongs to him” is considered as a chazzakah that counters the miggo mentioned above.
The Ramah (Choshen Mishpat 99:1) cites this view, but also mentions an opposing view that maintains that the miggo is accepted. See also Siftei Cohen 99:6, which cites support for the Rambam’s view.

By bringing witnesses; taking an oath is not sufficient.

If in fact the articles were entrusted to the debtor by another person, when he returns he can claim them from the creditor by bringing witnesses who testify that he had entrusted them to the debtor.

From the time the husband or the father gave the articles to his wife or children - or purchased them on their behalf - they became the property of the wife or children. They do not belong to the husband and hence are not on lien for his debts.

Since these garments are more valuable, we assume that the husband or father never gave them to his wife or children as their property. Instead, he always had in the back of his mind that if he becomes pressed financially, he will take them back and sell them.
In his Kessef Mishneh and his Shulchan Aruch (Choshen Mishpat 97:26), Rav Yosef Karo quotes the Tur as clarifying that this ruling applies only to clothes and jewelry that a husband gave his wife. Clothes and jewelry that she brought to the household before marriage are hers alone.
Even with regard to clothes given to her by her husband, the Maggid Mishneh mentions that there are conflicting views, which maintain that a woman’s Sabbath clothing is considered to be her property and is not on lien to her husband’s debts. The Ramah (Choshen Mishpat, loc. cit.) quotes this view.
Kin’at Eliyahu notes that the Rambam’s ruling is based on socio-economic factors, and if they change, the ruling also should be altered. Today, when women are given far greater financial independence, it is unlikely that anyone will consider gifts to them as being given conditionally.

For in Talmudic times - and today as well - jewelry also has financial value and is purchased as an investment. [For this reason, the Rivash (Responsum 301) states that even the opinions that differ with regard to clothing accept the Rambam’s view with regard to jewelry.]

The intent is Rabbenu Yitzchak Alfasi, who issued such a ruling in one of his responsa.

Seifer Me’irat Einayim 101:15 adds that this ruling applies even if the court knows that he is telling the truth.

See Hichot Matnot Aniyim 8:13. The burden of redeeming the Jew is not the individual responsibility of the creditor, but the obligation of the Jewish people as a whole.

When a person does not have the funds to pay his debt, we do not reduce him to utter bankruptcy. Instead, we enable him to keep his basic necessities.

See Hilchot Arachin 3:14ff.

As stated in Chapter 2, Halachah 2, neither the creditor nor an agent of the court can enter the debtor’s domain to take his property. Instead, it is his responsibility to bring it to the court.

He must bring everything, even those utensils that will ultimately be returned to him.

If foodstuffs are among his possessions, we allow him to keep 30 days worth of food. If he does not possess food stuffs, we sell his other possessions and grant him food (Sefer Me’irat Einayim 93:47).

Based on Hilchot Arachin 3:15, it would appear that this refers to weekday garments, but not to Sabbath or festival clothing, which is more valuable.

I.e., appropriate for his social stranding.

I.e., garments of luxury, that are not necessary for ordinary functioning.

For this is what is appropriate to his social standing.

The food, clothing and mattresses.

Although the Torah obligates the creditor to show consideration for the debtor and allow him to maintain himself, it does not obligate him to extend that consideration to the creditor’s family.

I.e., if he possesses three planes and one awl, we do not sell one of the planes and purchase an awl for him.

The Siftei Cohen 97:15 quotes the Bayit Chadash, who explains that although a court of law would give the creditor the property instead of the woman - nevertheless, if she seizes possession of movable property, it is not expropriated from her. The Siftei Cohen states, however, that this ruling is not universally accepted.

This applies even if she married before the debt was made, and thus her claim receives first priority (Kessef Mishneh). The Nimukei Yosef explains that the creditor’s claim is given priority because his claim originates in Scriptural Law, while that of the wife and children has its source in a Rabbinic injunction. The Lechem Mishneh disputes this explanation, noting that the Rambam also maintains that a woman’s right to her livelihood is granted by Scriptural Law. Instead, he explains that Bava Metzia 114a derives this principle through the exegesis of Biblical verses.

The creditor himself may not have been aware or have had access to this movable property. Nevertheless, when it is taken by the woman and made public knowledge, the creditor can then lodge a claim to it.

As indicated in the previous halachah.

See Chapter 1, Halachah 7.

Never does the Talmud impose physical punishment (blows or imprisonment) for monetary claims (Maggid Mishneh).

For all these are means to coerce him to pay his debt.

See Chapter 3, Halachah 4, which describes the function of the court’s agent.

The verse continues: “And he will bring the collateral to you outside” - i.e., the initiative is left solely to the debtor.
Although that verse refers to taking property for the sake of collateral, and this halachah speaks of expropriating property as payment for the loan, the Rambam equates the two. This is in contrast to the perspective of Rabbenu Yitzchak Alfasi and Rabbenu Asher, who make a distinction, explaining that when expropriating property to pay the loan, the agent of the court may enter the debtor’s home to take his possessions.
The Shulchan Aruch (Choshen Mishpat 97:15) quotes the other opinions. The Siftei Cohen 97:7 brings further support for the other views.

The Hagahot Maimoniot attributes this ordinance to the Savoraim, the first generation of sages who arose after the compilation of the Talmud.

Who claim bankruptcy even though they have possessions that they could sell to pay their debts.

For people would refuse to lend money out of fear that it would not be returned.

The Kessef Mishneh quotes Sefer HaTerumot, which states that this oath is administered even when the creditor has merely a suspicion, but no definite knowledge, that the debtor is withholding money from him.

This oath resembles the Scriptural oath imposed on a person who admits a portion of the claim lodged against him. In both instances, we assume that the person does not desire to deny entirely the debt he owes. Nevertheless, because he is presently strapped for funds, he tries to postpone payment slightly. Compelling him to take this oath precludes this type of procrastination (Ibid.).

See Chapter 1, Halachah 7.

Although the Sages instituted certain ordinances to maintain the norms of business practice, they never did so at the expense of violating an explicit Scriptural prohibition.

Our translation is based on the gloss of the Siftei Cohen 99:2, which states that if money is found in the possession of the debtor, even if he brings proof that it was given to him by another person, that other person is just like any other creditor and the money can be expropriated to pay other debts.

Chapter 1, Halachah 4, states similar concepts with regard to property seen in his possession before this oath is taken.

That he will manage for a share of the profits (see Hilchot Shluchim V’Shutafim, Chapters 6-7).

For we assume that any money that is found in a person’s possession belongs to him.

Witnesses who corroborate his testimony.
With regard to this law, the Ramah (Choshen Mishpat 99:1) mentions the difference of opinion cited in the notes on Chapter 1, Halachah 4, which questions whether or not the principle of miggo should be applied in this instance.

There is a responsum from the Ri Migash, the Rambam’s teacher, to this effect.

I.e., sages who arose after the compilation of the Talmud.

And is not having the oath administered to clarify that point.

Who would obviously require him to pay interest.

That she is not obligated to give him, as reflected in Chapter 1, Halachah 5.

See Hilchot Gezelah Va’Avedah 13:3.

For the oath will not justly advance the creditor’s position; it will not generate a source of income for the debtor. Instead, it will either - or both - cause him embarrassment or compel to pay the debt in a manner not desired by the Torah.

See Hilchot Talmud Torah 6:14, which states that a person may be placed under a ban of ostracism for “treat[ing] even one point of Rabbinic Law with disrespect; needless to say, this applies with regard to [matters of] Scriptural Law.”

The Ramah (Choshen Mishpat 97:15) states that the debtor may also be imprisoned in order to compel him to pay his debt.

We find this expression in Ketubot 86a, which states that a person should be subjected to corporal punishment until he dies or agrees to fulfill this mitzvah. This ruling is quoted by the Ramah (loc. cit.).
Significantly, the Rambam does not include this as one of the 613 mitzvot of the Torah or mention it as a mitzvah in his listing of the mitzvot at the beginning of these halachot. We see similar concepts with regard to the mitzvah to mention the exodus from Egypt daily. Although the Rambam uses such wording (Hilchot Kri’at Shema 1:3), he does not include it as one of the mitzvot of the Torah. This would indicate that at times, the Rambam employs the term mitzvah to refer to a desirable and positive activity required by Scriptural Law, even though it is not included as one of the 613 mitzvot.

Deuteronomy 22:3 states: “Justice, justice, shall you pursue.” Sanhedrin 36b interprets this as an injunction to judge righteously in a suit involving a deceitful person.

From God.

The Maggid Mishneh and the Lechem Mishneh note that with these statements the Rambam is giving a judge powers that extend beyond the ordinary parameters of the law. Although in the Talmudic period a judge was given that authority, in subsequent generations, when the integrity and impartiality of the court system declined, the initiative to exercise such authority was withheld from the courts. The Lechem Mishneh notes that the Rambam himself makes such a distinction in Hilchot Sanhedrin 24:2. It is possible that in the present halachah, he was stating the law as an abstract theory, relying on his later statements to clarify the practical application.

These people claimed that the debtor owed them money and that these obligations preceded those mentioned in the promissory notes, but they had neither witnesses nor a promissory note to support their claim. The debtor, however, admitted these obligations. If the debtor had sufficient assets, such an admission would ordinarily create a lien upon them.
The Kessef Mishneh states that if the debtor acknowledges the debt owed to the other person on his own initiative, his admission is not considered of consequence. If, however, the creditor comes first and brings witness who substantiate his claim, his word is accepted. He does not mention what would be the ruling if the debtor admitted the obligation, the creditor agreed and brought witnesses to substantiate the claim. See also Siftei Cohen 99:3 who takes issue with the Kessef Mishneh to a certain extent.

I.e., although he did not possess enough assets to pay his debts, he possessed more than the minimum amount allotted to him for his sustenance, as described in Chapter 1, Halachah 7.

I.e., the admission is not considered significant for the reasons mentioned by the Rambam.
The Bayit Chadash (Choshen Mishpat 99) states that if the borrower makes the admission of debt before he obtains financial resources, and then receives financial resources, his admission is binding. For at the time he made the admission, he is not causing a loss to the person holding the promissory note.
The Siftei Cohen 99:1 does not accept this conception, for the borrower may know that money is coming him and plan the deception in advance.

The Kessef Mishneh explains that the person who admits that the debtor owes him money may think he is performing a mitzvah by ensuring that the debtor has slightly more resources at his disposal without paying attention to the fact that he is depriving another person of what is due him.

I.e., we suspect that he did not in fact owe the money to the people whose claims were not supported by a promissory note, but made the admission to them so that all his property would not be given to the creditors whose claims were supported by promissory notes, but instead, divided equally among all those to whom he admits owing money. The people whose claims were not supported by promissory notes would then return a portion of the property that they were allocated to the debtor.
To prevent this from happening, we grant the money only to those individuals whose claims are supported by promissory notes, If, however, there are witnesses who support the claims of the creditors who do not possess promissory notes, these claims are accepted. If they predate the promissory notes, these creditors are given the right to collect the money owed them first (Maggid Mishneh).

See Shulchan Aruch (Choshen Mishpat 86:1), which states that this applies with regard to all debts: i.e., loans, unpaid wages and proceeds from sales.

Seifer Me’irat Einayim 86: I states that this principle applies regardless that of the loans were given first. Even when the debt that Reuven owes Shimon predates the debt that Levi owes Reuven, Levi is still obligated to pay Shimon.

This concept - referred to as shi'abudo d'Rabbi Natan - recalling the name of the sage who conceived of this idea - is a significant point in contemporary business dealings, for it allows the transfer of obligations from one debtor to another.
The commentaries agree that the lien established from one debtor to the other is binding according to Scriptural Law. On this basis, the Ritva writes that the first debtor is not entitled to waive payment of the debt owed him by the second debtor, for it is already on lien to his creditor. In contrast, when a promissory note is sold, the sale is binding only according to Rabbinic Law. Hence, if the seller waives payment, the waiver is binding.

This is a fundamental requirement. If Reuven has other property, we use it to pay his creditors before exercising the lien against Levi’s property.
This is the view of most authorities. The Siftei Cohen 86:5 differs and explains at length that even when the first debtor has other property, the debt creates a lien on the second debtor’s assets.

I.e., it was composed before the loan was actually given, with the understanding that if the loan were given, it would serve as a valid promissory note, but that if the loan were not given, the note would not be of consequence. The debtor claims - and the lender agrees - that the loan was never given, and therefore the promissory note is of no consequence.

I.e., the debt was paid, but the promissory note had not been returned to the debtor, and so it appeared outstanding.

The Maggid Mishneh quotes the Ra’avad as saying that if afterwards, Reuven paid Shimon himself and then demanded payment from Levi, Levi is required to pay him. He cannot claim that Reuven already admitted that the debt was no longer binding.

We fear that in fact the loan was made and never repaid, and that Levi will later pay Reuven. They are denying the existence of the debt at present so that the money will not be given to Shimon.

As mentioned in the commentary on the previous halachah, this applies in an instance where there are no witnesses who support the claim (Maggid Mishneh).

Whom one would not suspect to deny receiving the loan, for he might forget having taken it. See Bava Metzia 75b.

Because this creates the possibility of the borrower’s denying the obligation.

When collateral for a loan is given, the lender’s word is accepted, provided that he takes an oath supporting his claim, as stated in Chapter 13, Halachah 3.

Seifer Me’irat Einayim 70:4 explains that a promissory note is preferable - because it clearly spells out all the terms of the loan - in contrast to collateral, concerning which the borrower can claim that it was worth more than the money given as a loan (Chapter 13, Halachah 4).

This prohibition is interpreted as applying to the morally blind (Hilchot Rotze’ach UShemirat Nefesh 12:14). By lending money in this manner, the lender “invites” the borrower to deny the debt, as it were.

For people will curse the lender, because they will think that he is making a false claim against the borrower (Rashi, Bava Metzia, loc. cit.).

Indeed, we can assume the reason the master “borrowed” the money was to have the servant give it to him instead of keeping it hidden from him. (Compare to Hilchot Ishut 22:29.)

The Maggid Mishneh quotes certain opinions that differ and explain that there are instances when a woman or a servant can have money that does not belong to the husband or the master. Hence, if the money had been held openly - so that we do not think that the husband (or the master) took the loan only to reveal the money - the money can be considered as the property of the woman (or the servant). The Shulchan Aruch (Choshen Mishpat 127:1) quotes the Rambam’s view, while the Ramah mentions the other opinions.

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.