BAVA METZIA 112-116 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to Rav Weiner -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.
1) SEIZING AN OBJECT AS COLLATERAL FROM A DEBTOR
QUESTION: The Mishnah states that a creditor may not seize, on his own accord, an object as collateral from his debtor. The Gemara quotes Shmuel who says that although a Shali'ach of Beis Din is permitted to seize an object as collateral on behalf of a creditor, he is not permitted to enter the debtor's house in order to take the collateral.
This Halachah, that a creditor is not permitted to seize an object as collateral from the debtor, seems to contradict another Halachah which states that "Avid Inish Dina l'Nafshei." The Gemara in Bava Kama (27b) teaches that a person who is owed money is entitled to seize by force what is owed to him, without first summoning the other party to Beis Din. If the Halachah states that "Avid Inish Dina l'Nafshei," then why is a creditor not permitted to seize a Mashkon from a debtor? (Rishonim, cited by the NIMUKEI YOSEF, 69a of the pages of the Rif)
(a) RABEINU TAM answers that the Torah prohibits a lender from seizing an object from the borrower only when the object is seized as collateral. A lender is permitted to seize an object as payment for the debt.
The KETZOS HA'CHOSHEN (97:2) raises an objection to this answer. He says that only Beis Din may collect an object as payment on behalf of a creditor, because the object's value needs to be appraised. When a creditor seizes an object on his own accord, no proper appraisal is done, and thus it cannot be considered a valid collection according to Halachah.
(b) RABEINU TAM offers an alternative answer. He suggests that the Gemara in Bava Kama permits a person to seize only an object that rightfully belongs to him (for example, if someone stole an object from him, he may take it back by force). The Torah does not permit one to collect a debt by seizing an object that belongs to the debtor.
The RIF (in Teshuvos) states that in a case where the debtor is known to be a dishonest, brazen, or extremely difficult person who refuses to pay his debts, the Torah does not prohibit a Shali'ach of Beis Din from entering the debtor's home to take an object as collateral. This is also the view of the RAMAH (as cited by the SHILTEI GIBORIM and the TUR CM 97:26), who writes that the Torah prohibits a Shali'ach of Beis Din from entering the house of a debtor only when there is some other way to seize an object (or land) as collateral. The Shiltei Giborim and the Nimukei Yosef write in the name of the SEFER HA'TERUMAH, however, that this should be done only in extreme circumstances ("she'Ein Lanu Ko'ach la'Akor Mitzvah Zu Ki Im b'Koshi Gadol").
2) SEIZING A "MASHKON" FROM THE DEBTOR OUTSIDE OF HIS HOUSE
OPINIONS: The Gemara says that a Shali'ach of Beis Din is not permitted to enter the house of a debtor in order to seize an object as collateral, but he is permitted to seize an object from the debtor when he finds him outside of his house. The creditor himself is not allowed to seize an object as collateral even when he finds the borrower out of his house.
What is the source of the prohibition for a creditor to seize an object that is not in the debtor's house? The verse (Devarim 24:10) prohibits specifically entering the debtor's house to seize an object. It does not mention a prohibition to seize an object outside of his house.
(a) TOSFOS (113a, DH Eima Lo) asserts that the prohibition for the creditor to seize a Mashkon from the debtor outside of his house is only an Isur d'Rabanan, because the verse mentions only that he may not enter the debtor's house. As the Gemara says (according to the Girsa of Tosfos), the Rabanan prohibited the creditor from seizing an object from the debtor even outside of his house as a Gezeirah to ensure that he will not enter the debtor's house to seize it (and thereby transgress an Isur d'Oraisa).
(b) The LECHEM MISHNEH and others infer from the words of the RAMBAM (Hilchos Malveh v'Loveh 3:4) that he maintains that it is prohibited mid'Oraisa for a creditor to seize a Mashkon from a debtor even outside of his house. (According to the Rambam, when the Gemara says that he may not seize a Mashkon from the debtor outside of the debtor's house because he might enter the house, the Gemara is giving a reason for the Isur d'Oraisa (TOSFOS YOM TOV; see ARUCH HA'SHULCHAN CM 97:6).) This is also the view of the TOSFOS RID.
The Acharonim (NESIV HA'CHESED 7:5, cited by YOSEF DA'AS) explain that the Rambam's view is based on the Sifri (to Devarim 24:10). The Sifri states, "We know only that the Isur applies when the creditor enters the house of the debtor. How do we know to include in the Isur a case in which the creditor seizes an object from the debtor outside of his house? The Torah writes the additional words, 'la'Avot Avoto,' to include in the Isur the act of seizing an object from the debtor even outside of his house." (Even though the verse specifically says that one is prohibited to enter the house of the debtor, this is Lav Davka (S'MA to CM 97:7). Alternatively, when the creditor takes an item directly from the debtor's hand, it is considered as though he takes it from his house (EVEN HA'AZEL, DH v'Nir'eh).)
3) LEAVING THE DEBTOR WITH SUFFICIENT ASSETS TO LIVE
QUESTION: The Gemara describes the amount and type of supplies that a creditor must leave for a debtor when he collects from the debtor's assets.
How is this Gemara to be reconciled with the well-known principle that a creditor "may collect from a debtor even the shirt on his back" (Bava Kama 11a)? That principle implies that the creditor is not required to leave anything for the debtor.
(a) RABEINU TAM (cited by TOSFOS 114a, DH Mahu) indeed rules, based on the Gemara in Bava Kama, that "Ein Mesadrin l'Ba'al Chov" -- the creditor is not required to leave anything for the debtor. He maintains that the Rabanan and Raban Shimon ben Gamliel here argue about whether or not the Halachah is "Mesadrin l'Ba'al Chov," and that the Halachah follows Raban Shimon ben Gamliel.
(b) The RIF, RAMBAM and others rule that the creditor must leave the debtor with his basic necessities. TOSFOS in Bava Kama (11a) and the RAN here explain that the Gemara in Bava Kama refers to a case in which the debtor has a spare shirt. The creditor may take that shirt from the debtor since the debtor still has a shirt with which to cover himself.
(c) The RAMBAN and RASHBA answer that the Gemara in Bava Kama refers to a case in which the creditor and debtor stipulated in the Shtar that the creditor would be entitled to collect the shirt off of the debtor's back, thus making it a binding condition in the loan.
(The Rashba answers further that perhaps the Gemara in Bava Kama agrees that the Halachah is that "Mesadrin l'Ba'al Chov," and it is exaggerating when it says that the creditor may collect even the shirt off of his back.)