גביית חוב Bava Metzia 113a

As I walked into my favorite Wall Street Kosher Deli for lunch, I saw the bailiffs carrying out stacks of chairs, tables, kitchen utensils and ovens and load them onto trucks. I wondered whether they had even allowed the customers to finish eating their sandwiches. As the owners, probably in debt over their heads, watched their business and livelihood disappear, I wondered how Jewish law would handle such a situation.

When it comes to the payment of debts, the Halacha, like other systems of law, struggles with two competing concerns. There is the concern that the debtor not be denied the basic human freedoms we all take for granted such as freedom of movement, the right to earn a living and the right to subsist. But there is also the competing concern that if the law is too forgiving, nobody will lend money. And the Torah encourages those that have to lend to those that have not.

There is a basic code of ethics by which both creditor and debtor must abide. The creditor, who knows that the debtor has no assets from which to pay the debt, may not oppress him or even embarrass him with his presence. Conversely, the debtor may not play for time by inventing fake pretexts for non-payment and he may not spirit away assets.

When the loan becomes due, the Beit Din grants the debtor a grace period of thirty days to raise money in order to repay the debt. The Beit Din has discretion to increase or decrease the duration of the grace period depending on the circumstances of the case. During this grace period, although the creditor may not seize or sell any of the debtor’s assets, he may, if he is concerned that the debtor may dissipate assets, ask the Beit Din to order the debtor to deposit assets with the creditor as security.

If these deposited assets include personal effects that are essential to the subsistence of the debtor, such as daytime clothes or night-time bedding, the creditor must return the day clothes to the debtor each day and the bedding each night. These deposited assets may not include cooking and eating utensils. If, however, the debtor agreed to deposit specified assets with the creditor as security at the time he took the loan, such deposited assets are not subject to any of these restrictions.

After the expiration of the grace period, the Beit Din orders the debtor to declare all of his assets and to deposit all of his personal property in court. Out of these assets, the court sets aside minimum subsistence requirements for the debtor including food for thirty days, clothing for one year, basic furniture and bedding, Tallit and Tefillin and basic tools of trade. The rest of the debtor’s assets are put up for sale to repay the debt. If the sale of personal property does not suffice to repay the debt, the creditor may then request the court to commence foreclosure proceedings on the debtor’s house and other real estate.

A debtor who has no assets other than what is required for his minimum subsistence can walk away from his debts rather like a debtor in contemporary bankruptcy. If the creditor claims that the “deadbeat” debtor has made fraudulent transfers of his assets or otherwise hidden his assets simply to avoid the creditor, then according to the Shulchan Aruch, the Beit Din may forcibly enter the debtor’s premises and seize his property.

The Rambam, however, prohibits forcible entry into debtor’s premises even by court appointed bailiffs or sheriffs. Instead, according to the Rambam, the Halacha imposes an oath on the debtor who must swear that he has no hidden assets. The court also has the power to excommunicate a recalcitrant debtor.

Unlike the English legal system of Dickens’ days, the Halacha will not throw a person, who simply and truly does not have the money to pay his debts, into debtor’s jail. Neither will it force the debtor, against his will, to sell himself into slavery to work off the debt.

Raphael Grunfeld received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Rav Dovid Feinstein, ztz’’l. A partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, Raphael Grunfeld is the author of “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim” available for purchase at www.amazon.com/dp/057816731X and “Ner Eyal: A Guide to the Laws of Shabbat and Festivals in Seder Moed” available for purchase at www.amazon.com/dp/0615118992. Questions for the author can be sent to [email protected].