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Shabbat Parashat Shoftim | 5769

Hemdat HaDaf HaYomi: Stand Outside Collecting Debt from the Borrower

Rav Ofer Livnat

This week in the Daf Hayomi, the Gemara (113-116) deals with the laws of taking collateral and collecting debts from a borrower. In the Torah, there are a number of Mitzvot pertaining to this issue. These Mitzvot come to protect the dignity of one who borrowed money and is having difficulty repaying the loan. One of the prohibitions the Torah states is that the lender is not allowed to enter the house of the borrower in order to take collateral. The Torah states: "… you should not go into his house to take his pledge. You should stand outside, and the man to whom you lend should bring out the pledge to you" (Devarim 24, 10-11). The Gemara (113a) rules that, not only is the lender prohibited from entering the borrower's house, but even the Beit Din may not send its representative to enter the borrower's home. This prohibition has been manipulated by some people who want to avoid paying their debts, by hiding their wealth inside their homes. The Rishonim deal with the issue of how the Beit Din should act when it suspects that someone is hiding money in his home in order to avoid repaying his debts.
According to Rabbeinu Tam (Sefer Hayashar Chidushim 602), the prohibition of entering the house is only when one is coming to take collateral to ensure the loan, but when coming to collect the debt, the representative of Beit Din is allowed to enter the borrower's home. However, many of the Rishonim did not accept this distinction of Rabbeinu Tam and therefore dealt with the issue in other ways.
The Sefer Haterumot (sha'ar 1 section 3) writes that, since Beit Din is allowed to work outside the law if it is necessary to maintain law and order, if Beit Din sees a wicked person who is avoiding paying his debts, the Beit Din can temporarily override the prohibition of entering the borrower's home. The Rambam (Malveh Veloveh 2, 4) writes that the Beit Din needs to find ways to force such a person to pay, such as expelling him from the community. However, it appears from the Rambam that even in such a case, his home may not be entered, since the Torah specifically stated that this is prohibited.
The Beit Yosef (97, 28 in the Bedek Habayit) writes that, since according to Rabbeinu Tam, it is permitted to enter the house of the borrower when coming to collect the debt, and according to other Rishonim this may be done outside the law when Beit Din sees a need for it, therefore, it may be done when Beit Din suspects that one has assets and is hiding them in his home. He rules this way in the Shulchan Aruch (97, 15) as well.
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the head of the Kollel,
on the passing
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