Misvot #585-586: Seizing Collateral From a Borrower

The Torah commands in Parashat Ki-Teseh (Debarim 24:10) that when a creditor is owed money, “Lo Tabo El Beto La’abot Aboto” – he may not enter the debtor’s home to forcefully seize his property in lieu of payment. The lender is not permitted to take the law into his own hands by forcefully seizing collateral, and must rather wait for the court to require the borrower to give him something as collateral. The Sefer Ha’hinuch explains that the Torah issued this command in the interest of maintaining law and order in society, to ensure that people do not resort to violent tactics to obtain what they want. If a person would be allowed to forcefully seize what is owed to him, society would be overrun by chaos, and the strong would always overpower the weak. The Torah therefore requires that a lender take collateral in lieu of payment only with the authorization of a Bet Din. This command applies also to court officials, forbidding them from entering the borrower’s home without his permission. They must instead wait outside the borrower’s home, and have him bring them possessions to be given to the lender. The court official may, however, forcefully grab the collateral from the borrower’s hand outside his home. The lender is not permitted to forcefully grab the collateral, even outside the borrower’s home. This command applies in all times and places, and is binding upon both men and women. If someone seized collateral from his debtor without permission from the Bet Din, he transgresses this prohibition. He is not liable to Malkut, however, because he can rectify his transgression by simply returning that which he unlawfully took, and one is not liable to Malkut for a violation which can be rectified (“Lav Ha’nitak”). The Rambam writes, though, that if the lender seized the collateral, and it was subsequently lost or destroyed, then the lender is indeed liable to Malkut, because he can no longer return it and thus rectify his violation. The Sefer Ha’hinuch questions this ruling, noting that even in this case, although the lender can no longer return the actual collateral, he can pay its value to the borrower, and thereby rectify the transgression. Seemingly, then, even if the unlawfully seized collateral is lost or destroyed, the lender should not be liable to Malkut. Two verses later (24:12), the Torah commands, “Lo Tishkab Ba’aboto,” introducing a prohibition forbidding a lender from keeping with him the collateral when the borrower needs it. If, for example, the borrower gave as collateral a blanket which he needs to keep him warm at night, the lender must return it at night. If the borrower gave a cooking utensil, it must be returned when the borrower needs to prepare food. If the lender keeps the collateral with him even when the borrower needs it, he is in violation of this command. He is not liable to Malkut, because this command is transgressed through inaction (“Lav She’en Bo Ma’aseh”), and Malkut are administered only for violations committed through an action.