1-5770 Mitzvah 59
September 21, 2009
Negative Mitzvah 59 – This is a negative commandment: Do not take as a pledge (or take as collateral for pawn) any object by main force from a debtor.
Hafetz Hayim – As Scripture says: “You shall not go into his house to take his pledge.” (Deut. 24:10). The lender is not to take a pledged object from the borrower except through the court. And even the representative of the court who comes to remove it is not to enter his house to take it but is to remain outside as Scripture says, “You shall stand outside” (Deut 24:11) The borrower is to go into his house and bring the pledged object to him, as Scripture says, “and the man to whom you make the loan shall bring forth the pledge out to you”, (ibid). As for a guarantor, it is permissible to take an object in pledge from him by force, and to go into his house and take the pledge for it says, “Take his garment, for he has given surety for a stranger (Proverbs 20:16.) So too, if someone has remuneration due him from his fellow-man, whether it is wages for his labor or payment for the hire of his animal, his tools, or his house: he is permitted to take a pledge without the action of the court. He may enter the other’s house and take an article in pledge for his payment. But if he has converted the fee due him into a loan for the other to pay, it is forbidden. It is in force everywhere, at every time for both men and women.
In keeping with our trend to spare the feelings of one who has taken out a loan, we come to the issue of collateral. If the loan was made based on some article possessed by the borrower being chosen as collateral for the loan, and if the borrower defaults on the loan, then the lender is entitled to the collateral. The collateral is held by the borrower until it is needed. ( I don’t think that there is any reason that the lender cannot hold the collateral while waiting for payment on the loan, but that is not the issue here.) If the lender wants to claim the collateral, he cannot force his way into the house to take it. That is a direct violation of the Torah. He must go to the court, prove that he is owed the collateral and then the court sends a bailiff to get the object to give to the lender.
But note that even here the agent for the court cannot enter the home to take the collateral. He must ask the borrower to bring out the object and give it to the agent. While it is possible for the borrower to refuse to bring it out, it would bring on him communal penalties in addition to the monetary one that the court has awarded.
All of this is to protect the borrower from intrusion into his private domain and the pain of having his personal property seized. It must be turned over to the court by the borrower to fulfill his contract with the lender.
The second part of this Mitzvah has to do with a third party, the guarantor of the loan. If someone has guaranteed the loan to the lender on behalf of the borrower, and the guarantor has paid the lender the money owed on the loan, the guarantor does have the right to enter into the borrower’s home to take out an object in pledge. It is telling that this law is derived not from the Torah but from Ketuvim, the third section of the Hebrew Bible. Those who have been reading these lessons a long time know that it is rare to see a quote from outside the Torah. In this case, because of the verse from Proverbs, the guarantor can enter the home of the borrower and take an object of value to reimburse his payment on the loan.
Why can the guarantor do what the lender cannot? The lender and borrower are engaged in a contract. The guarantor is doing the borrower a favor. If he has to make good on the pledge he has fulfilled his position regarding the loan and is entitled to speedy restitution. The guarantor can enter the home of the lender and if he finds an object of value, he can take it and sell it in the market to recoup his expenditure on behalf of the borrower. He can do this unless he converts the money he gave to the lender into a new loan from the borrower; he then is no better than any other creditor and can be refused entry into the home just as the original lender was refused entry. This is all similar to the rules of a paid watchman verses the simple guardian who guards as a favor. If the object is lost, the paid watchman has to reimburse the owner for the loss. If the guardian, who is watching the object as a friend, loses the item, he only has to make an oath that he has no idea where the object is and he is clear of having to pay any restitution.
Best wishes to my readers for a happy, healthy and sweet New Year.