Mezuzah Maven

For the week ending 29 June 2024 / 23 Sivan 5784

Bava Metzia 110 -116

by Rabbi Moshe Newman
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No Collateral Damage

“When you lend to someone else, you shall not enter his home to take his collateral. You shall stand outside, and the person to whom you gave the loan will bring the collateral to you outside.” (Devarim 24:10 & 11)

These verses serve as the basis for laws that govern taking a security for payment of a loan (and certain other debts) in the event the time for payment has arrived and the borrower refuses to pay. The mishna on our daf teaches this halacha explicitly: “One who lends his friend, he should take a security in Beit Din (Jewish religious legal court), and he should not enter the person’s house to take the security.”

The Sage Shmuel explains in the gemara that the prohibition against entering the borrower’s home to take the security is referring to the agent of the Beit Din, who was appointed and sent to collect from the borrower. Nevertheless, he may not enter the borrower’s domain. Rather, this agent of the court is permitted to grab it from the borrower when the borrower is in the marketplace, or some such public area outside the home. Accordingly, it seems from the gemara that the lender may not only not enter the borrower’s home to take a security, but is also not allowed to take seize it in the open — rather, he must file a claim in Beit Din so that Beit Din will send their agent to collect it in public.

Not allowing a lender to collect his own security appears not to be in accordance with the principle of “avid inish dina l’nafshei” — a person may do what is lawful for himself — as is taught by Rav Nachman in Masechet Bava Kama 27b. A number of resolutions are offered by the Rishonim and Achronim. Here are two for starters.

The Torah prohibits the lender's seizing an item only if he is seizing it as collateral. However, if he is taking it as payment for the debt, it is permitted (Rabbeinu Tam). The Ketzot HaChoshen questions this explanation since taking an item for payment requires that the Beit Din evaluate its exact value, and barring this evaluation, the item may not be taken. An additional answer offered by Rabbeinu Tam is that a person may only “take the law into his own hands” if he is taking from another person an item that in fact belongs to him. The most obvious example would be that if a person sees a thief with his stolen item, he is permitted to repossess it from the thief. Regarding taking an object for security in the case of a loan, however, only an agent of Beit Din may take action, and, even then, only outside of the debtor’s home.

An interesting note: The word “coined” by Chazal in the mishna for a collateral security is different than the word that appears in the Torah. Our Sages use the word “mashkon” in the mishna and gemara for a collateral. It literally means “that which dwells”. I have heard that this “new word” is meant to teach us to view the collateral item as merely “dwelling” in the hands of the lender, despite him not being the true owner (yet).

The Torah word for collateral in Devarim 24:10 (and other places) is “avot”, spelled ayin, veit, tet. Rabbi Shimson Raphael Hirsch explains in his commentary on the Chumash Devarim 15:6 that the word avot is related to the word eved (slave), whih denotes the intensely joined nature of the relationship between the lender, borrower, and the security item that represents the borrower’s “enslavement” to the lender. Rabbi Hirsch also points out that the word avot is also related to the Hebrew word for braided, such as braided rope that tightly joins two entities (although the Hebrew word for braided is spelled with a taf at the end instead of a tet). Collateral taken for payment serves as an indication of “who’s the boss”, and who is tied up to whom.

Bava Metzia 113a

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