Rambam - 3 Chapters a Day

Introduction to Hilchos Malveh veLoveh

They contain twelve mitzvot: four positive commandments and eight negative commandments. They are:

1) to lend to a poor and destitute person;
2) not to press him for collection;
3) to press a gentile for collection of a debt he owes;
4) not to forcibly take collateral from a borrower;
5) to return collateral to its owner when he requires it;
6) not to delay giving the collateral to the poor man who owns it when he requires it;
7) not to take collateral from a widow;
8) not to take utensils used to prepare food as collateral;
9) that a lender should not loan at interest;
10) that a borrower should not take a loan given at interest;
11) that no one should be involved with the lender and the borrower of a loan given at interest - not to serve as a witness between them, not to draw up a promissory note, nor to serve as a guarantor;
12) to borrow and lend money to a gentile at interest.

These mitzvot are explained in the following chapters.

It is a positive commandment to lend money to the poor among Israel, as Exodus 22:24 states: "If you will lend money to My nation, to the poor among you." Lest one think that this is a matter left to the person's choice, it is also stated Deuteronomy 15:8: "You shall certainly loan to him."

This mitzvah surpasses the mitzvah of charity given to a poor person who asks for alms. For the latter person had already been compelled to ask, and this one has not yet sunk that low. Indeed, the Torah is very severe with regard to a person who does not lend money to a poor person, stating Ibid.:9: "Beware lest there be a defiant thought in your heart... and you look badly upon your poor brother and you not give him."

Whenever a person presses a poor person for payment when he knows that he does not have the means to repay the debt, he transgresses a negative commandment, as Exodus 22:24 states: "Do not act as a creditor toward him." It is, by contrast, a positive mitzvah to press a gentile for payment and to cause him exasperation, as Deuteronomy 15:3 states: "Press a gentile for payment." According to the Oral Tradition, we have learned that this is a positive commandment.

It is forbidden for one to appear before a person who owes him money when he knows that the debtor does not have the means to repay the debt. It is even forbidden to pass before him, lest one frighten him or embarrass him, even though one does not demand payment. Needless to say, this applies if he demands payment.

Just as it is forbidden for a creditor to demand payment; so, too, it is forbidden for a borrower to withhold money that he possesses due a colleague, telling him: "Go and return," as Proverbs 3:28 states: "Do not tell your colleague: 'Go and return.'"

Similarly, it is forbidden for a borrower to take a loan and use it when it is unnecessary and lose it, leaving his creditor without a source to collect the debt. This applies even if the owner is very wealthy. A person who acts in this way is wicked, as Psalms 37:21 states: "A wicked man borrows and does not pay." Our Sages commanded: "Treat money belonging to your colleague as dearly as your own."

When a lender demands payment of a loan - even if he is wealthy and the borrower is in a pressing situation and struggles to support his family - we are not merciful in judgment. Instead, we expropriate all the movable property that the person owns to pay the last penny of the debt. If the movable property he owns is not sufficient, we expropriate the landed property after issuing a ban of ostracism against any person who possesses movable property or knows of movable property he possesses and does not bring it to court.

We expropriate all the landed property the borrower possesses, even if it is on lien to the ketubah of the borrower's wife or to another creditor with a prior lien. We expropriate it for this creditor. If ultimately, the person with the prior lien will come to claim the property, he may expropriate it from the creditor to whom it was given.

If the lender claims that the movable property in his domain does not belong to him, but instead was entrusted to him, rented by him, or lent to him, we do not heed his words. He must prove his statements or the property will be expropriated by the creditor.

A creditor may not collect his due by expropriating the wardrobe of the debtor's wife or his sons, not from colored garments that were dyed for them even though they have not worn them yet, nor from new sandals that were purchased for them. These belong to the wife and the children themselves. When does the above apply? With regard to their weekday garments. The creditor may, by contrast, expropriate their Sabbath and festival garments. Needless to say, if they own rings or golden or silver ornaments, they must all be given to the creditor.

The following rules apply when a borrower owned movable property or landed property, but also had outstanding promissory notes owed to gentiles. If he says: "All of my property is on lien to gentiles; if Jews take the property as payment for their debts, the gentiles will imprison me because of the debts I owe them, and I will be in captivity," my teachers have ruled that his words are not heeded, and the Jews are granted the right to expropriate his property. If the gentiles come and imprison him, all of Israel is commanded to redeem him.

We allow a debtor consideration in the same manner that consideration is granted to a person who makes a pledge to the Temple treasury and is unable to pay it.

What is implied? The court tells the borrower: "Bring all the movable property that you own; don't leave anything, not even a needle."

After he brings his possessions, we give him from everything that he has brought:

a) food for 30 days;

b) clothing for 12 months that is appropriate for him - he should not wear silk clothes or a hat crowned with gold; instead, such garments are taken away from him and he is given appropriate garments for 12 months;

c) a couch to sit on and a bed and a mattress to sleep on; if he is a poor man, he is given a bed and a straw mattress to sleep on. These articles are not given to his wife or to his children, despite the fact that he is obligated to provide them with sustenance.

The borrower is also given his sandals and his tefillin. If he is a craftsman, he is given two of the tools of his craft of every type necessary. For example, if he is a carpenter, he is given two awls and two planes. If he has many types of one utensil and only one of another, he is granted two of the utensil of which he possesses many, and all that he owns of that he possesses one. We do not purchase other tools for him from the sale of those many tools.

Although the borrower is a farmer or a donkey driver, we do not grant him his team of oxen or his donkey. Similarly, if he is a sailor, we do not give him his ship, even though these are his only sources of livelihood. The rationale is that these articles are not considered utensils, but rather property. They should be sold with the other movable property in court and the proceeds given to the creditor.

The following law applies when a creditor comes to expropriate payment outside the presence of the borrower - e.g., the borrower journeyed to a distant country. If the borrower's wife seized possession of movable property belonging to her husband to sell so that she could derive her livelihood from it, it is expropriated from her and given to the creditor. The rationale is that even if her husband were present, he would not be entitled to provide for the sustenance of his wife and sons until he paid his debt in its entirety.

According to Scriptural Law, when a creditor demands payment of his debt, and the debtor possesses some property, consideration is granted to the debtor and the remainder of the possessions are granted to the creditor, as explained.

If no property belonging to the debtor is found or only those items that are granted to him in consideration are found, the debtor is enabled to go free.

We do not imprison him, nor do we tell him: "Bring proof that you are poor." We do not require him to take an oath that he has no possessions as the gentile legal process does. All of the above is included in the prohibition (Exodus 22:24): "Do not act as a creditor toward him." Instead, we tell the creditor: "If you know that this person who owes you money possesses property, go and seize it."

If the creditor claims that the debtor possesses property, but is hiding it, and it is present within his home, according to law it is not proper for either the creditor or an agent of the court to enter his home to seize the property. Indeed, the Torah warned concerning this saying Deuteronomy 24:11: "Stand outside." We do, however, issue a ban of ostracism against anyone who owns property and does not give it to his creditor.

When, however, the Geonim of the early generations who arose after the compilation of the Talmud saw that the number of deceitful people had increased and the possibility of obtaining loans was diminishing, they ordained that a debtor who claims bankruptcy should be required to take a severe oath, comparable to a Scriptural oath, administered while he is holding a sacred article, that he does not possess any property aside from what he is given in consideration, that he has not hidden his property in the hands of others, or given the property to others as a present with the intent that it be returned.

He should include in the oath that any profit he makes and everything that comes into his possession or domain which he acquires, he will not use to provide sustenance, clothing, or care for his wife or children, that he will not give any person in the world a present. Instead, he will take from everything that he earns food for 30 days and clothing for 12 months that is appropriate for him - not the food of gluttons or drunkards, nor that enjoyed by the sons of royalty, and not the garments of the officers of the royal court, but food and clothing that is commonplace for him. Anything beyond his needs, he should give to his creditor little by little until he pays his entire debt. Before the oath is administered, a ban of ostracism is issued against anyone who knows that so and so possesses property that is either revealed or hidden and does not inform the court.

Even after this oath was ordained, neither a creditor nor an agent of the court is allowed to enter the house of the debtor. For an ordinance was not instituted to uproot the Torah's laws themselves. Instead, the debtor himself must bring out his utensils or say: "This and this is what I possess." We leave him what is appropriate for him, expropriate the rest and have him take the oath ordained as described above. This is the legal process among the Jewish community in all places.

If the debtor was seen with property after having taken this oath, and he tries to excuse himself, claiming that it belongs to others or that it was given to him as an investment, we do not accept his statements unless he brings proof. My teachers ruled in this manner.

When a person takes this oath that he is bankrupt and all that he earns will be given to his creditors, he may not be required to take this same oath by all of his creditors. Instead, one oath applies to all the creditors. The rationale is that this is an ordinance instituted by the later sages, and we are not precise in applying it stringently. On the contrary, we are lenient.

An exception to the above practice is made with regard to a person who has established a reputation for being poor and virtuous, and conducts himself in a trustworthy manner, and this is known to the judges and the majority of the people. If a creditor comes and seeks to make this person take the oath mentioned above, and it can be presumed that the plaintiff has no doubt about the debtor's state of poverty, but instead wishes to cause him exasperation with this oath, to torment him and to embarrass him publicly, to take revenge upon him or to force him to borrow money from gentiles or take property belonging to his wife to pay this creditor and absolve himself from taking this oath, it appears to me that it is forbidden for a God-fearing judge to have this oath administered. If he does administer this oath, he violates the Scriptural prohibition: "Do not act as a creditor toward him."

Moreover, the judge should reproach the creditor and castigate him, for he is bearing a grudge and acting according to the reckless whims of his heart. Our Sages instituted this ordinance only because of deceitful people, as implied by Deuteronomy 22:2: "Until your brother seeks it out," which can be interpreted to mean: Seek out whether your brother is deceitful or not. In this instance, since it is established knowledge that this person is poor and that he is not deceitful, it is forbidden to require him to take this oath.

Similarly, when it is established knowledge that a person is deceitful and he deals corruptly in financial matters, we presume that he possesses financial resources although he claims to be bankrupt, and he is eager to take this oath. I maintain that it is not appropriate to require him to take the oath. Instead, if it is possible for the judge to compel him to make restitution to his creditor or to place him under a ban of ostracism until he makes restitution, he should do so. The rationale is that he is presumed to possess financial resources, and paying a creditor is a mitzvah.

The general principle is: Whenever a judge performs one of these activities with the sole intent of pursuing justice, as we have been commanded to, without intending to favor either of the litigants in judgment, he has that authority, and he will receive a reward for his efforts, provided that they are carried out for the sake of heaven.

Whenever a person is obligated to take this oath because of a promissory note that he is liable for, he admitted owing money to other people, and he was able to amass more property than the minimum amount allotted to him, this extra amount should be given only to the creditors who possess promissory notes. The rationale is that we suspect that the debtor may be conspiring to perpetrate deception by making an admission of a debt concerning this property.

When Reuven owes Shimon 100 zuz and Levi owes Reuven 100 zuz, we should expropriate the money from Levi and give it to Shimon.

Therefore, if Reuven does not possess any property, but has promissory notes owed to him by Levi, those promissory notes are given to Shimon to collect. Accordingly, if Levi claims that the promissory note was given on faith or that it had already been paid, even though Reuven acknowledges the truth of Levi's statement, his admission is of no consequence. The rationale is that we fear that they may be conspiring to perpetrate deception to cause Shimon to lose his right to the money owed by Levi. Instead, Shimon may take an oath and expropriate the money from Levi. This is the law that applies to anyone who expropriates property; he may do so only after taking an oath.

Similarly, the following law applies to any person against whom there is an outstanding promissory note, who admits owing money to another person on his own initiative. If he does not possess enough property to pay both debts, the person with the promissory note alone is entitled to collect his due. This is ordained, because we suspect that they may be conspiring to perpetrate deception to undermine the power of the person's promissory note.

It is forbidden for one to lend money - even to a Torah scholar - without having witnesses observe the transaction unless the lender receives an article as collateral. It is even more commendable to have the loan supported by a promissory note.

Whenever a person gives a loan without having witnesses observe the transaction, he transgresses the prohibition (Leviticus 19:14): "Do not place a stumbling block before the blind" and brings a curse upon himself.

When a master borrows money from his servant and afterwards frees him, he is not liable to him at all. The same laws apply when a husband borrows from his wife. The rationales are that everything that a servant acquires becomes acquired by his master, and any money that is in a woman's possession is assumed to belong to her husband, unless she brings proof that it comes from her dowry.

Collateral may not be taken from a widow, whether she is rich or poor, whether it is taken at the time the loan is given, or after the time the loan is given, as Deuteronomy 24:17 states: "You shall not take the garment of a widow as collateral." This prohibition applies even when the court would supervise the matter.

If a creditor takes such collateral, it must be returned, even against his will. If the widow admits the debt, she must pay. If she denies its existence, she must take an oath. If the security the creditor took became lost or was consumed by fire before he returns it, he is punished by lashes.

Similarly, whenever a person lends money to a colleague - whether he offers the loan in exchange for collateral, he takes collateral after the loan was given, or the collateral was given him by the court - he should not take utensils that are used for making food - e.g., a mill, kneading troughs, large cooking pots, a knife used for ritual slaughter or the like - as Deuteronomy 24:6 says: "Do not take as collateral... for one is taking a life as collateral."

If a creditor takes such collateral, it must be returned, even against his will. If the security he took became lost or was consumed by fire before the creditor returns it, he is punished by lashes.

When a person takes several utensils that are used to produce food - e.g., he took a kneading trough, a pot and a knife - he is liable for each utensil independently. Even if he took two utensils that are used for the same activity, he is liable for taking two utensils and is given lashes for taking each of them.

This is implied by the verse cited above, which mentions taking "a lower millstone and an upper millstone." This indicates that he is liable for each of the millstones independently. Just as the upper millstone and the lower millstone are two utensils that serve a single purpose, and the person is liable for each one independently; so, too, a person is liable for any other two utensils independently even though they serve the same purpose. Similarly, if he takes as collateral a yoke for oxen that plow, he is liable for two transgressions.

When a person gives a loan to a colleague - whether the borrower is rich or poor - he should not take security himself. Instead, he should charge the court with this responsibility.

Moreover, even an agent of the court who comes to collect security should not enter the borrower's house to collect the security. Instead, he should stand outside. The borrower should go into his own house and bring out the security for him, as Deuteronomy 24:11 states: "You shall stand outside."

If so, one might ask: What is the difference between the creditor himself and the agent of the court? The agent of the court may take the security from the borrower by force and give it to the lender. The creditor himself, by contrast, may not take the security unless it is willingly given him by the borrower.

If the creditor transgressed and entered the house of the borrower and took security, or took collateral away from him by force, he is not punished by lashes. The rationale is that the prohibition can be corrected by the performance of a positive commandment, as Ibid.: 13 states: "You shall certainly return the security to him before the setting of the sun."

If he did not fulfill the positive commandment concerning it - e.g., the collateral became lost or was consumed by fire - he is punished by lashes. In such an instance, the creditor should calculate the value of the collateral, subtract it from the debt, and lodge a suit for the remainder.

When a person takes collateral from a colleague, whether through the medium of the court, or he personally takes it from him either by force or by consent of the lender he is not always entitled to maintain possession. If the borrower is poor and the creditor took as collateral an article that the borrower needs, he is commanded to return the collateral to the borrower at the time that the borrower needs it. For example, he should return a pillow at night for him to sleep on it and a plow during the day for him to work with. This is implied by Deuteronomy 24:13: "You must certainly return the collateral."

If the creditor transgressed and did not return to him a utensil to be used by day during the day, or a utensil to be used at night during the night, he transgresses a negative commandment, as ibid.:12 states: "Do not sleep with his collateral." This means: "Do not go to sleep while his collateral is in your possession"; this refers to a garment worn at night. With regard to articles that he wears or uses to perform work during the day, Exodus 22:25 states: "Until the setting of the sun, return it to him" - this teaches that he must return it to him throughout the day.

If the creditor must return the collateral to the debtor when he needs it, and may take it only when he does not need it, of what benefit is the collateral to him?

a) So that the debt will not be nullified in the Sabbatical year;

b) So that the collateral will not be considered part of the movable property inherited by the debtor's sons. Instead, the creditor may take payment from the collateral after the borrower dies.

Thus, a person who takes an object as collateral from a poor person who needs it and fails to return it at the appropriate time violates three commandments: "You shall not enter his house," "You must certainly return the collateral," and "Do not sleep with his collateral."

When does the above apply? When he took the collateral at a time other than the time the loan was given. If, however, he took the collateral from the debtor at the time the loan was given, he does not transgress these prohibitions.

An agent of the court who comes to take collateral should not take articles that a person cannot give as collateral - e.g., the garment he is wearing, the utensils with which he eats, or the like. He should leave a bed and a mattress for a rich man, or a bed and a straw mattress for a poor man. Whatever possessions the debtor has besides these should be taken as collateral. The creditor will then return to him an article used by day during the day, and an article used at night during the night.

If the debtor has two of a particular article, the creditor may take one, but must return the other.

Until when is the creditor obligated to return the collateral and then take it again? Forever. If, however, the collateral was an article that the debtor did not need, nor an article that is left for a debtor, the creditor must keep it for 30 days. Afterwards, he may sell the collateral in a court of law.

If the debtor dies, the creditor is not required to return the collateral to his sons. If the debtor dies after the collateral was returned to him, the creditor may pull it away from his sons and does not have to return it to them.

A creditor may take collateral from a guarantor by force. He may enter the guarantor's house and take the collateral, as Proverbs 20:16 states: "Take his garment, because he guaranteed a stranger."

Similarly, a person who is owed a fee by a colleague - whether it be his own wages, a fee for his animal or his utensils, or rent for his house - may take collateral without consulting the court. He may enter his home and take collateral in lieu of his fee. If, however, he considered the fee as a loan, this is forbidden, as implied by Deuteronomy 24:10: "When you extend a loan of any type...."

The following rules apply with regard to a person who has in his possession collateral belonging to a poor person. If the fee for the rental of that article is more than the depreciation of the collateral - e.g., an ax, a large saw, or the like - it is permitted for him to rent it out and continually deduct the money he receives as its fee. This is like returning a lost object to its owner. He need not ask the owner for permission.