Hilchos Choshen Mishpat
Volume IV : Number 2
Collecting Debts the Halachic Way
In the Torah there is a prohibition of (Shemos 22:24) "Lo S'Hiyeh Lo
K'Nosheh" - you should not act like a creditor when collecting a loan.
When is it forbidden for a lender to make a claim against a borrower
because of this prohibition and when and how is it permitted to claim
money from a borrower?
There are many factors involved in answering these questions, as follows:
- A lender is permitted to request payment from a borrower when a loan
becomes due. He need not be concerned that the borrower might not have
the funds or property that he could sell to repay the debt. This is
especially true if the lender thinks that the borrower has forgotten
about his debt. It is only forbidden to claim a debt if the lender knows
that the borrower is unable to pay, and claiming the money will only
cause him discomfort.
- If a lender requests payment of a due debt, and the borrower replies
that he does not presently have the funds to repay it, the lender is not
obligated to believe this to be true, and is permitted to continue to
request payment afterwards, until the borrower presents proof in Bais Din
that he is presently unable to repay the debt.
- Even if the lender knows for a fact that the borrower does not have
cash with which to pay him, he is permitted to request payment if the
borrower has property that he could sell. However, this is only true if,
after selling property to pay off the debt, the borrower would have
enough left over for his basic, minimal, living expenses, and a place to
live. This is in accordance with the rule of "Mesadrin L'Baal Chov"- we
make reasonable arrangements for debtors, as stated in the Shulchan
Oruch, Choshen Mishpat 97:23 (1).
Similarly, even if he knows that the borrower has no means with which to
repay a loan now, a lender may file a claim against a borrower in a Bais
Din so that they should confirm his debt, and evaluate the ability of the
borrower to repay over an extended amount of time.
- As we stated above, a lender is not permitted to demand payment if he
is certain that the borrower does not have the ability at all to repay
the loan. As a matter of fact, he is also forbidden to frequent areas
that the borrower frequents, so that he see him and be uncomfortable. (2)
This prohibition applies even if the lender did not lend personal funds,
but is an officer of a free loan fund that serves the public. He is still
forbidden from claiming the funds when he knows for a fact that the
borrower simply has no way to repay them at this time. (3)
All of the above only applies to debts that occur through loans, not to
debts that occur through sales on credit, damages, etc.
- According to the Torah, a borrower is not obligated to borrow from
others to repay his debt. Therefore, if he does not have the funds, it is
forbidden to demand payment even in the hope that he will borrow from
others to repay you. However, today it is common practice for people who
need large sums of money to borrow from one source, and then roll the
loan over to another source when it becomes due. Since at the time of the
loan they intended to borrow from others to repay you, under these
circumstances it is permitted to demand payment, even if you know that
the only way they will be able to do so is by taking out a loan from
If, however, the lender knows that the borrower has no other sources of
credit, and he does not have possessions to sell with which to repay his
debt, the Torah prohibition to claim such a loan remains intact. (4)
(1) See the Shulchan Oruch HaRav (GRA"Z), Hilchos Halva'ah, 2,13.
(2) The Gemara in Bava Metziah 75b states "Rav Dimi says, how do we know
that if someone lends his friend a Mannah (100 Zuz) and he knows that he
does not have it, that it is forbidden to walk in front of him (so that
the debtor will see the lender and feel uncomfortable), this is taught in
the verse of 'Lo S'Hiyeh Lo K'Nosheh'. It is very clear from this that
the prohibition for a lender to claim money from a borrower only exists
if he knows that the borrower does not have any way to repay, and despite
this the lender demands repayment, or just deliberately makes the
borrower uncomfortable with his presence. If the lender is unsure whether
or not the borrower has the ability to repay, no such prohibition exists.
This is also stated in the Sefer HaChinuch (Mitzvah 67), and in the
Shulchan Oruch, Choshen Mishpat 97:2.
Although we generally have a rule that "Sofek D'Oraysoh L'Chumrah", when
we have a doubt regarding a Torah prohibition we must be stringent, The
Minchas Chinuch (ibid.) explains that this is not relevant in our case
for the following reason. By definition, the prohibition of claiming
money only exists if you are certain that the borrower in unable to pay,
and are trying to make him uncomfortable. If you are in doubt regarding
this- there is simply no prohibition at all. Otherwise, most of the time
people would be unable to claim loans that they have made, since it is
usually impossible to know for certain that the borrower can definitely
repay. How is it possible that on the one hand, the Torah obligates a
person to lend money to his fellow Jew, and on the other hand will forbid
him from requesting payment when it is due?! Therefore, only when the
request of the lender will definitely only cause discomfort to the
borrower is it forbidden to request payment. If the lender thinks that
there is a possibility that he will be repaid, and demands the money so
that he should receive what is rightfully his, and not solely to cause
discomfort, no prohibition at all exists.
An interesting question that now arises is, if the lender knows that the
borrower can not repay, is he permitted to go somewhere where he knows
the borrower will be, but is not going there for the purpose of causing
him discomfort? Is he obligated to go there at an inconvenient time when
he knows that the borrower won't be there, or do we say that although the
borrower may have discomfort from seeing the lender there, this is not a
reason that should require the lender to inconvenience himself by having
to adjust his own schedule and cause himself discomfort - just to prevent
his debtor who can not repay him from having discomfort! As of this time,
I haven't found anyone who discusses this specific issue, although it
seems logical to me that the lender need not inconvenience himself if he
needs to go somewhere where the borrower is, as long as he has personal
reasons to go there, and has no intention of causing the borrower
It would appear from the words of the Aruch HaShulchan (Choshen Mishpat
97:2) that if the lender must frequent places where the borrower is
present, he can inform him once that he needs to be there for personal
reasons, and is not interested in getting repaid as long as the borrower
is unable to repay him. This would resolve the above question in a manner
in which no parties need be uncomfortable.
(3) Since the issue here is causing a fellow Jew discomfort for no
constructive reason, it makes no difference if the source of discomfort
is a lender who lent his own funds, or an official who has lent communal
funds. The Chofetz Chaim in his Sefer Ahavas Chessed (7:8) states this
clearly regarding the prohibition of going to a debtors home to repossess
items (Devarim 24:10), and it would seem that this would apply to our
(4) It is clear from the words of the Shulchan Oruch (Choshen Mishpat
97:23), that although a Bais Din may confiscate property from a
delinquent borrower to repay his loan, they do not have the authority to
force him to borrow money from others to repay what he has borrowed.
It is also clear from the Teshuvos HaRosh (Klal 68, Siman 10), Teshuvos
HaRashba (Vol. 1 Siman 1069), Teshuvos HaRivash (484), and the Shulchan
Oruch (ibid. 15), that a Bais Din can not force a borrower to work in
order to make money to repay his debt. This is based on the Possuk
(Shemos 22:2) "VeNimkar B'Gneivaso" - and he should be sold (into
servitude) for his theft, from which we deduce that he can not be sold
for a debt incurred in another way. This is true even if the borrower
agreed at the time of the loan that if he is unable to pay when the debt
is due, he is willing to go to work for the lender to pay off the debt.
Even if this was written into a contract, and a Kinyan was made on it,
since this is a condition which violates our Torah in a situation which
involves personal suffering (Masneh Al Mah SheKosuv B'Torah B'Makom
Sheyaish Tzaar HaGuf), it is void. As stated in the Biur HaGrah (97:45),
even Rabbi Yehuda, who generally argues with Rabbi Meir (Kesubos 63a)
and holds that a condition that violates the Torah is Halachically
binding, would agree in this case that it is not Halachically binding.
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an
Av Bet Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
and approval. His columns have recently been compiled and published in a
three volume work called Mishpetei HaTorah, which should be available
from your local Sefarim store.
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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!
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