Lesson 48: Re’eh

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

---

With God’s help

Concepts

• Debt and lien: between transaction and gift.
• Between a mitzvah (commandment) and law, or: between the obligations of Yoreh De’ah and those of Choshen Mishpat.
• Monetary mitzvot of action and of outcome.
• Seizure of assets and coercion with respect to mitzvot.

Abstract

In this week’s essay we deal with loans and liens. We show that the loan is an unusual creature in the legal world, situated between a reciprocal legal transaction and a gift. On the standard view, a loan is a transaction in which the transfer of money creates a debt owed to the lender. The debt is the expression of reciprocity in this “transaction.” After defining the concepts of “lien” and “debt,” we focus on the mitzvah that the Torah imposes to repay the debt. This mitzvah is the subject of a dispute among the Amoraim, and later among medieval and later authorities.

The views according to which such a mitzvah exists even in normative halakha raise several questions. Why is there any need to impose a mitzvah on an obligation that already exists on the legal plane, that is, an obligation arising from the other party’s rights? Why, in cases of doubt, do we rule that the burden of proof rests on the one who seeks to extract money from another, rather than obligating the borrower to pay out of doubt under the rule that doubts concerning biblical law are treated stringently? If this is merely a mitzvah, without a monetary liability, why does the court proceed against the borrower’s assets? Conversely, if there really is such a debt, why do we not proceed also against the assets of orphans? And finally: why is there a difference between the mitzvah of returning interest, where we indeed compel payment but do not proceed against assets, and the repayment of loans, where we do proceed against assets?

These questions lead us to the conclusion that a loan is a hybrid creature, between a monetary transaction and a gift. The transfer of the money is like an outright gift, and the money becomes the borrower’s property. There is no reciprocity here, and the debt is not created by the mere transfer of the money. On the other hand, the Torah imposes on the borrower a mitzvah to repay, which is defined through a lien on his assets, at least according to the view that liens are biblical. The purpose of the lien is to create the framework of an outcome-commandment, that is, a commandment that the money be repaid, not a commandment that the person himself perform the repayment. It is as though there is money that belongs to the lender, but this is an expression of the mitzvah and not of a real debt, as in the case of a tortfeasor, an employer, and the like.

The responsibility for fulfilling the mitzvah, that is, transferring the money, is of course placed on the borrower. But when he does not fulfill it, we proceed against his assets and fulfill it on his behalf. By contrast, the return of interest is an obligation concerning the lender’s action of rectifying a wrong and returning the interest. In such mitzvot there is no point in proceeding against assets, because the mitzvah is imposed on the lender, and if we perform it for him, it turns out that it has not been fulfilled.

This also explains why, in the case of a loan, we do not proceed against the assets of minor orphans. The reason is that minors are not subject to mitzvah-obligation; and since no mitzvah to repay is imposed on them, no lien on their assets is created either.

We conclude the essay with a brief discussion of the remission of debts in the Sabbatical year, where various aspects of the nature of the loan also find expression. First, the conception according to which the debt lapses automatically, by a kind of royal annulment, appears to be a direct consequence of the picture presented above. Here the Torah does not impose the mitzvah to repay, but the debt itself remains in place.

On Loans and Their Essence

A Halakhic (Jewish-legal) Perspective on Debts and Liens

Introduction

At the beginning of chapter 15 in our parasha, the Torah deals at length with the matter of lending to the poor (Deuteronomy 15:1-11):

At the end of every seven years you shall institute a remission. And this is the matter of the remission: every creditor shall release what he has lent to his fellow; he shall not press his fellow or his brother, because the Lord’s remission has been proclaimed. You may press the foreigner, but whatever of yours is with your brother, your hand shall release. However, there shall be no needy among you, for the Lord will surely bless you in the land that the Lord your God is giving you as an inheritance to possess—if only you diligently obey the voice of the Lord your God, taking care to do all this commandment that I command you today. For the Lord your God will bless you as He has spoken to you, and you will lend to many nations while you will not borrow; you will rule over many nations while they will not rule over you.

If there shall be a needy person among you, one of your brothers, within any of your gates in your land that the Lord your God gives you, do not harden your heart and do not close your hand against your needy brother. Rather, you shall surely open your hand to him and lend him sufficient for his need, whatever he lacks. Beware lest there be a base thought in your heart, saying: The seventh year, the year of remission, is approaching—and your eye will be evil toward your needy brother, and you will not give to him; then he will cry out against you to the Lord, and it will be a sin for you. You shall surely give to him, and your heart shall not be grieved when you give to him, because for this thing the Lord your God will bless you in all your work and in all that you undertake. For the needy will never cease from the land; therefore I command you, saying: You shall surely open your hand to your brother, to your poor and needy in your land.

Within these verses several mitzvot appear that were counted by the classical enumerators of the commandments, although with respect to some of them there is disagreement. At the outset we are commanded regarding the remission of debts, and we are forbidden to press our brother for a debt that has been remitted. Within that framework there is also a mitzvah to press the foreigner. After the promises given to us if we keep these commandments, the Torah returns and commands the basic duty to give or lend to the poor person. Finally, the Torah warns us not to refrain from lending out of fear that the debt will be remitted in the seventh year. The loan is to be given generously.

These matters raise several interesting points concerning the legal conception of debt and loan in halakha, and those points will occupy us in this week’s essay.

A. Basic Concepts: Loan, Debt, and Lien

Introduction

Usually, a transaction between two parties is an exchange of goods and money. For example, a sale is an exchange of the sold object for money. Labor transactions, such as a guardianship contract, “transfer” various actions, or commitments to actions, in exchange for money. Set against such economic transactions is another monetary act: the gift. A gift is the transfer of an object to someone without compensation. One can also work for another gratuitously, or let him use an item free of charge. All of these are forms of gift. Gifts are transactions that transfer something to someone without consideration.

A gift is indeed a transaction, because economic parameters change as a result of it: property changes ownership and passes from hand to hand. Yet it is difficult to regard it as part of commercial activity and the economic interactions of the marketplace. It is an economic act that is not really a transaction, and the legal aspects that accompany it are few and marginal. Its main significance lies in human relations. Sometimes there is a mitzvah to give a gift; sometimes it is forbidden—see the essay on Parashat Vaetchanan, 5767—and sometimes it is an expression of goodwill, and so forth.

The Basic Character of the Loan

What happens in a loan transaction? When one person lends money to another, he transfers money to him. What does he receive in return? Seemingly, nothing. At a later time the borrower is obligated to return the money he received. In other words, this is essentially a gift transaction, that is, a transfer without consideration. True, once the money is returned to the lender, the end result is that nothing was permanently given. But the time during which the money remained with the borrower is itself worth money, even in a framework in which interest is forbidden and thus, apparently, erases the monetary value of waiting for one’s money. That value is given in the loan without any compensation.

And yet, a loan is a type of transaction that we do not usually associate with the category of gift. It is an intermediate case, between an economic transaction and a gift. It contains an element of gift, and therefore it constitutes an act of kindness toward the borrower. According to Maimonides, this is the highest degree of benevolence, even more than a gift, which falls under the commandments of charity and also appears in our parasha.

This also explains why loans are discussed in halakha in two different contexts: in the context of civil monetary law—the legal definitions of lien, debt, forms of collection, and so forth—and in the context of what is forbidden and permitted—the mitzvah to lend, the prohibition of interest, the duty of debt remission, and the prohibition of pressing the debtor, among other matters. These two aspects stem from the fact that a loan stands between an economic transaction and a gift. An economic transaction has to be legally defined and delimited, and the rights of the parties have to be discussed. By contrast, with respect to the aspect of gift, discussion centers on the sphere of prohibition and permission: there is a halakhic duty, a positive commandment, to give this “gift”; it is forbidden to charge money for it, that is, to take interest; the debt must be remitted in the seventh year; and so forth. In an ordinary monetary transaction, we would not expect there to be such halakhic commandments or prohibitions, at least not of this kind. Of course there are prohibitions of overcharging, deception, and the like, but those are part of the legal framework that enables economic activity.

Among halakhic decisors, the laws of loans are usually discussed within the framework of monetary law and commercial-economic relations. For example, in the Shulchan Arukh the laws of loans appear in Choshen Mishpat, and in Maimonides they appear in Sefer Mishpatim. This is an interesting phenomenon, given the fact that in truth there is no transaction in a loan, since only the borrower receives something from it. In an ordinary economy, a loan is a transaction in every respect. But in a halakhic economy, one that does not rely on commercial workarounds of the loan-for-interest prohibition, a loan is an act of kindness and nothing more. So why is its discussion usually included in the frameworks in which halakha deals with economic activity?

The main reason is the legal ramifications of the loan, just as there are legal ramifications to a gift. That is why the laws of gifts, too, are discussed in the legal parts of halakha. But with loans there is an additional reason that creates a more strongly legal character: the legal definitions that accompany this act are complex, and in many respects they resemble, and relate to, the definitions of other economic transactions. The root of the matter will be explained in the following sections.

The Problematic Nature of the Loan Transaction

As we explained above, a loan is not the giving of money as a gift. What is given here as a gift is the period during which the borrower may use the money, that is, the time to “work” with the money until repayment. When the lender gives the money to the borrower, the money ceases to be his and becomes the borrower’s money in every respect. In the language of the Sages: “A loan was given to be spent” (Babylonian Talmud, Kiddushin 47a, and parallels). The coins given at the time of the loan do not belong to the lender, and in the future the borrower is supposed to return other money of the same amount. The lender has no claim against the borrower of the type, “My property is in your possession,” as a robbery victim has against a robber, where the robber possesses an object that still belongs to the victim.

The question that arises here is: by what legal mechanism is the borrower required to return the money to the lender? If the money that was given now belongs fully to him, what suddenly arises after thirty days—the ordinary default term of a loan is thirty days—that obligates him to give back an identical sum to the lender? In the halakhic conception, something must come into being at the moment of the loan itself, and only by force of that something can the obligation later arise to pay the money back to the lender, that is, to repay the loan, when the time for repayment arrives.

For example, in the essay on Parashot Matot-Masei, 5767, we discussed the principle that once the act of acquisition has spent its force, its legal effect cannot suddenly arise later. If an act of acquisition has been performed, it is impossible for the legal effect created by that act to be postponed to a later time. Once the act itself has disappeared from the world, the legal effect cannot suddenly arise ex nihilo at some later point. For example, if a man betroths a woman today but wants the betrothal to take effect only in a month, that is impossible. Something must be created at the moment of betrothal, and that something can bring about the betrothal on the designated date. The legal effect cannot come into existence out of nothing.

The Debt: The Legal Layer of the Loan

Unlike a sale or betrothal, a loan is, in its essence, a deferred debt. The entire point of a loan is the transfer of money with the expectation that it will be repaid only after some time, not immediately. If so, the loan transaction always has the character of a deferred legal effect, and therefore something must always accompany it—something created at the time of the loan itself—that generates the later obligation to repay. That “something” is called a debt. A loan is a kind of contract arising from an act, namely the transfer of money. The debt is the legal result of the loan contract and of the transfer of money to the borrower. Now the loan acquires, as it were, the character of an ordinary economic transaction: the borrower receives money and “gives” a debt in return. To eliminate the debt, he must pay the amount of the loan, that is, restore it to the lender.

This is the reason why legal definitions are needed for the loan transaction. Those legal definitions are meant to solve the essential difficulty embedded in such a transaction: how to create a debt that will generate an obligation to repay at the time fixed for that purpose in the contract. The image of a give-and-take transaction is of course only the result of that halakhic solution, namely the creation of debt, and not the true nature of the loan transaction itself.

From this debt one goes on to define the concept of lien, whose purpose is to ensure that repayment will in fact be realized. In other words, the debt that is created here obligates the borrower to pay the lender the sum that was given to him. In order to ensure that he does so, halakha establishes both a personal obligation incumbent on the borrower himself to repay the debt, and also a lien on his assets, in case he fails to meet his obligation, whether voluntarily or involuntarily. For example, if the borrower sold land that had been subject to the lender’s lien to a third party, and when the time came for repayment he had no cash or other assets, the lender may go to the purchaser and take from him the field he bought, by force of the lien that rested upon it.¹

It is important to note that there is a dispute in the Talmud (see Babylonian Talmud, Bava Batra 175b) whether the lien on assets is biblical or rabbinic—using the Talmud’s terminology, whether “the lien is biblical” or “the lien is rabbinic.”

In addition to lien, there is also the entire subject of collateral in its various forms, which is itself a complete halakhic discipline. Collateral, too, consists of mechanisms designed in different ways to ensure repayment of the loan. Several prohibitions and mitzvot relate to collateral as well, but this is not the place to elaborate.

The overall picture that emerges from what we have said in this chapter is that the legal aspects accompanying the loan concern mainly mechanisms whose purpose is to ensure repayment: debt, lien, and collateral. Once these mechanisms exist, they must of course be legally defined, and that leads to no small degree of legal complexity. These aspects are meant to protect the lender’s property.

Set against these are the mitzvot that accompany the loan, whose purpose is mainly to protect the borrower. There is a mitzvah to lend to him. There is a prohibition on taking interest from him. There is a prohibition on taking collateral from a widow, and also a prohibition on holding certain forms of collateral at certain times. There is a duty to remit the debt, and a prohibition on pressing him for payment in the Sabbatical year. These mitzvot limit the lender’s rights, but they belong primarily to the sphere of what is forbidden and permitted, rather than to the strictly legal sphere.

In the next chapter we will see that the distinction between these two spheres is not as sharp as it has been presented here.

B. Repayment of a Debt Is a Mitzvah

Introduction

There is one mitzvah that appears somewhat unusual among the mitzvot relating to loans. The Gemara states that the repayment of a debt by a debtor is a mitzvah. This mitzvah imposes on the borrower, that is, on the debtor, a mitzvah to repay the debt. It is meant to protect the lender, and in that sense it differs from the other mitzvot in this area, whose main function is to protect the borrower.

On closer inspection, however, the status of this mitzvah is unclear. Why is such a mitzvah needed at all, when the entire point of the loan transaction is to create the legal obligation to repay the debt? Why is a mitzvah necessary when a legal duty to repay already exists? As we saw, when the money is handed over, a debt is created from the borrower to the lender, and the legal meaning of that debt is that the borrower must repay the loan to the lender. Why do we also need a mitzvah to fulfill a contractual obligation? It would make more sense to view non-fulfillment as a transgression, but not the fulfillment itself as a positive commandment. Already here it becomes apparent that a loan is not merely an economic transaction, as we had presented it until now. It seems rather to be a kind of gift, and when the borrower repays his debt he is, in effect, giving a kind of return gift to the lender.

This picture presents the “debt” in a different way from what we saw above. Until now we assumed that the debt was a legal obligation that creates a kind of ownership, or lien, over the borrower’s assets. It was as though the lender had some ownership-right in the borrower’s money. We now see instead that the binding force falls on the person of the borrower, not on his money. The creation of the debt means that the borrower undertakes to pay money to the lender.

Loan and Undertaking

To sharpen this conclusion and its implications, and to understand better the difficulty inherent in it, let us begin with a short preface. If Reuven undertakes to give Shimon money, that undertaking has no legal force, and Shimon cannot sue Reuven in court to enforce it. If Reuven does not carry it out, he may indeed have committed a wrong, but Shimon is not a litigant who can demand enforcement. Whether we understand that wrong as an offense against another person or as an offense against Heaven, it is clear that Shimon cannot sue Reuven for a broken promise. As stated, Reuven may be an offender, but it would not be correct to say that he is unlawfully holding money that belongs to Shimon.

We may go further. Even if Reuven swore to give the money as a gift to Shimon, his obligation to Shimon is still not legal in nature. If he does not fulfill it, he transgresses—between man and God, and perhaps also between man and his fellow—but Shimon cannot sue him in court for failure to fulfill his obligation. Shimon is not a legal party to the matter, because no money of his is being wrongfully held by Reuven.²

Now let us return to the matter of the loan. A loan seems to be a legal transaction that obligates the borrower to repay. We know that the lender can sue the borrower in court in order to compel repayment of the debt. That means that this is not merely a prohibitory or religious duty, but a legal debt. Reuven’s money is being held by Shimon unlawfully, and therefore Reuven can sue him to pay the debt.

We can now understand more clearly the difficulty raised above. If the debt indeed belongs to the legal sphere, then why is there any need for a mitzvah that obligates repayment? As noted, if there were merely a transgression in the debtor’s failure to repay, that would be easier to understand. But it is hard to understand how there can be a positive commandment to fulfill a contractual obligation.

Coercion and Seizure of Assets³

Above we saw one aspect of the difference between a prohibitory obligation and a legal debt: whether the injured party is a litigant who can come and demand judgment against the wrongdoer. We now turn to another aspect of that distinction: proceeding against a person’s assets.

We know that if someone does not pay money that belongs to another and that he is holding unlawfully, the court proceeds against his assets, that is, it takes from him against his will. By contrast, when someone insists on violating a prohibition and does not respond to warnings, the court will compel him to fulfill the mitzvah or refrain from the transgression, but according to most views it will not proceed against his assets. For example, if someone refuses to build a sukkah, the court will compel him by force until he builds it and sits in it, but it will not proceed against his assets and purchase a sukkah in his place. The reason is that fulfillment of the mitzvah is incumbent upon him, and there is no value in the court’s performing the mitzvah in his stead. By contrast, the nonpayment of a debt is not merely a failure to fulfill the mitzvah that a debtor must repay. It is also the fact that another person’s money has not been returned to its owner. Here the problem is not that the person failed to perform a mitzvah, but that the situation itself is defective. This is a problem of result rather than of action. When the problem is one of result rather than action, the court itself will change the situation and correct the wrong. That is, it will proceed against his assets and pay the debt to the lender from them in his place.

In light of this, it follows that if the borrower does not repay his debt to the lender, then, if this is a legal problem, the court proceeds against his assets and satisfies the debt in his place. By contrast, if repayment is only a mitzvah, then the court should coerce the borrower to fulfill the mitzvah, but certainly should not fulfill it in his place. As a matter of halakha, it is certain that the court does proceed against the borrower’s assets and pays the lender from them. The obvious conclusion, then, is that the debt has legal force and is not merely an action-commandment imposed on the person of the borrower.

To understand the significance of this conclusion, we must return to the Talmudic passages dealing with this rule and see what is included in it.

The Arakhin Passage: The Assets of Orphans

A dispute among Amoraim is brought in Babylonian Talmud, Arakhin 22a:

Rav Nahman said: At first I would not attend to the assets of orphans. Once I heard this statement of our colleague Rav Huna in the name of Rav: “If orphans are consuming what is not theirs, let them go after the one who left it to them”—from then on I did attend to them. At first, what was the reason I did not? Rav Pappa said: Repayment of a debt by a debtor is a mitzvah, and orphans are not subject to the performance of mitzvot. Rav Huna the son of Rav Yehoshua said: Perhaps their father deposited bundles of money with him. What is the practical difference between them? The difference is in a case where the debtor admits the debt; or alternatively, where he was placed under ban and died while still under ban. They sent from there: It is a case where he was placed under ban and died while under ban. And the halakha follows Rav Huna the son of Rav Yehoshua.

Rav Nahman describes the fact that at first he did not collect debts from the assets of orphans, until he heard from Rav Huna that there is reason to do so. The Amoraim disagree as to why Rav Nahman initially refrained from collecting from orphans. Rav Pappa says that repayment of a debt is a mitzvah, and minor orphans are not bound by mitzvot, so one does not collect from them. Rav Huna the son of Rav Yehoshua maintains that they did not collect only because there was concern that the father had already given the lender something on account of the debt and had not had time to retrieve his promissory note. On the plain sense of the passage, Rav Huna the son of Rav Yehoshua holds that, in principle, one does collect even from orphans; that is, this is not a mere mitzvah but a legal debt.

To understand the dispute, let us consider the following case: a minor stole an object from someone and refuses to return it to its owner. Would anyone imagine that because the minor is not subject to the mitzvah of “he shall restore the stolen item that he stole,” we would therefore not take the object from him and return it to its owner? Clearly, in such a case we would take the object, because the issue is not the minor’s fulfillment of a mitzvah but the restoration of property to its owner. In our terms, there is here a problem of result that must be corrected, not of action, and therefore intervention is justified even when the robber is a minor.

If so, Rav Pappa’s position implies that repayment of a debt is a mitzvah, and therefore the category does not apply to minors. Moreover, it is not correct to say that there is indeed a mitzvah here, but that it is merely an additional layer on top of a legal obligation that also exists—in other words, that the mitzvah is to fulfill the legal obligation. For if the mitzvah were only an additional dimension of the legal obligation, then the case of debt repayment would be exactly like the case of robbery, where there is also a mitzvah of restoration in addition to the legal obligation. In that case, it would be obvious that we would collect the debt from orphans as well.

The Ketubot Passage: Coercion

Another reference to the above dispute appears in Babylonian Talmud, Ketubot 86b:

Rav Kahana said to Rav Pappa: According to you, who say that repayment by a debtor is a mitzvah, what if he says, “I do not wish to perform the mitzvah”? What then? He said to him: We learned: “When is this said? With regard to negative commandments. But with regard to positive commandments—for example, if they say to him: Make a sukkah, and he does not make it; take a lulav, and he does not take it—they strike him until his soul departs.”

Rav Kahana challenges Rav Pappa, who holds that repayment of debt is a mitzvah: what is the law if the borrower says, “I do not want to perform the mitzvah”? If this is only a mitzvah, then seemingly it is not our concern; God will settle accounts with him. In any case, the lender certainly ought not to be able to sue him for the money. This is exactly the difficulty we raised above.

Rav Pappa’s answer is very surprising. He says that this really is only a mitzvah, and indeed there is no possibility of collecting the debt from him against his will as though another’s property were lying in his hands. But there is a rule that positive commandments may be enforced by coercion, even by beating, and therefore the court can coerce him to fulfill the mitzvah imposed upon him and repay the debt. In other words, Rav Pappa truly understands the repayment of debt as nothing more than a mitzvah, with no legal debt in the judicial sphere at all. The fact that the court may deal with a borrower who refuses to repay is not due to the protection of the lender’s rights, but to the duty imposed on the court to compel every Jew to fulfill the mitzvot incumbent upon him, as in the case of building a sukkah and the like.

Thus the Gemara itself draws precisely the implication we noted above: according to Rav Pappa there is no room to proceed against the assets of a borrower who does not wish to repay. At most one can coerce him to fulfill the mitzvah imposed upon him. Not because there is another person who has been injured, but because of the mitzvah incumbent upon him, just as in the case of sukkah and lulav, where one coerces a person to comply even though no other person is harmed by his noncompliance. Again we see that the conclusion is that, according to Rav Pappa, the repayment of debts is only a mitzvah, with no legal layer at all.

At first sight it would seem that the lender would not be able to sue the borrower at all for failure to repay his debt. His status in court would be, at most, that of a witness. He could testify that Shimon has not fulfilled a mitzvah, but he would not be a litigant claiming money. This is exactly like the case we described above, in which a person swore to give his fellow a gift. There too, the intended recipient of the gift cannot sue the swearer for failure to fulfill his undertaking. At most, he can serve as a witness that the other did not fulfill a mitzvah and violated the prohibition, “He shall not profane his word.” It should be emphasized that in this respect there is no difference between commandments between man and his fellow, such as repayment of a debt, and commandments between man and God, such as building a sukkah or keeping an oath. In both cases we are dealing with a mitzvah that belongs to the sphere of prohibition and permission rather than the legal sphere, with all the consequences that follow from that. And the same holds in the opposite direction: if this were a legal debt, then more would be involved here than a mere interpersonal mitzvah.

The Source of the Commandment to Repay a Debt

The medieval authorities cited several sources for this mitzvah. Sefer Mitzvot Gadol, positive commandment 93, writes an interesting sentence: “Just as there is a mitzvah upon the lender to lend, so there is a mitzvah upon the borrower to repay.” It would seem that the source of the duty to repay is the very same mitzvah that obligates the lender to lend. The commandment is that the lender lend, but a loan by definition is something that must be repaid, and therefore a mitzvah arises for the borrower to repay it.

Other medieval authorities, however, cited more explicit sources. For example, Rashi and Ran in the Ketubot passage cite the verse “just balances”—understood homiletically as “let your ‘yes’ be just” (see a similar exposition in Babylonian Talmud, Bava Metzia 49a). In other words, this duty is rooted in the obligation to keep one’s promises. The borrower promised to repay, and he must fulfill that promise. Rashi there indeed explains: “It is a mitzvah upon him to repay his debt and make his words true.”

By contrast, Nahmanides on Babylonian Talmud, Bava Batra 175b, and other authorities derive it from the verse, “The man to whom you are a creditor shall bring the pledge out to you” (Deuteronomy 24:11). And Radbaz understood from Maimonides that the source of this mitzvah is the verse, “He shall restore the stolen item” (Leviticus 5:23).⁴

What Is the Relation Between the Mitzvah and the Law of the Lien?

As we saw above, it is quite plausible that this is a biblical mitzvah. And indeed several medieval authorities write that it is a commandment from the Torah. See, for example, Ritva on Kiddushin 13b, Responsa Mabit part 1, no. 51, and Pitchei Teshuvah on Choshen Mishpat 97:4. By contrast, Ra’avan, no. 68, wrote that it is a rabbinic mitzvah. Yet closer examination of his words shows that he does not mean this in every case. He explains that the mitzvah is rabbinic only with respect to orphans, since the legal obligation to repay exists only with respect to the borrower himself. Since by Torah law there is no lien that passes on to orphans, they do not bear a legal duty to repay; rather, at most, only a rabbinic mitzvah. It is only concerning this that the Gemara above says that they are not in the category of those who perform mitzvot.

As we shall see below as well, some medieval and later authorities linked Rav Pappa’s statement to the question whether liens are biblical or rabbinic, and therefore also to the nature of the loan itself—whether it is oral or documented. According to the view that liens are biblical, there is clearly a debt on the legal plane, and therefore there is no room for Rav Pappa’s position. Everything Rav Pappa said would then apply only where there is no lien, at least not by Torah law. Therefore, either Rav Pappa holds that liens are not biblical, and then the mitzvah applies to all loans, or he is speaking only of an oral loan, where according to all views there is no lien on assets.

It is important to note, however, that this distinction is not universally accepted, and many medieval authorities reject it. For example, Nahmanides and Shitah Mekubetzet in the name of Ra’avad on Bava Batra there, and likewise in Shitah Mekubetzet on Ketubot 86a in the name of an early recension of Rashi, and this is also implied by the difficulty raised by the students of Rabbeinu Yonah and by Ritva from the Mishnah cited in Shitah Mekubetzet on Ketubot there. All of these hold that Rav Pappa’s statement was made even in cases where there is a biblical lien.

The Halakhic Ruling

We noted that the statement, “repayment of a debt by a debtor is a mitzvah,” was made by Rav Pappa, and from the course of the Talmudic discussion it appears to be disputed by Rav Huna the son of Rabbi Yehoshua. The question is therefore which view is accepted in halakha. Moreover, we have seen that according to some medieval authorities Rav Pappa’s ruling depends on the question whether liens are biblical, and from that angle as well the question arises whether this mitzvah exists in normative halakha.

And indeed, Nahmanides on Bava Batra 174b and 176a, Meiri on Ketubot, Ritva on Kiddushin 13b and on Bava Batra there, and Shakh on Choshen Mishpat 39:2 all write that since Rav Pappa’s statement was said according to the view that liens are not biblical, the law does not follow him. Shakh there adds that this itself is the point of disagreement between Rav Huna the son of Rav Yehoshua and Rav Pappa. In Rav Huna’s view, even if liens are not biblical, the debt still rests upon the assets in the legal sphere, and therefore it cannot be only a mitzvah. According to Shakh, the rejection of Rav Pappa is based on the very distinction between the legal sphere and the sphere of prohibition and permission, regardless of whether the lien is biblical or rabbinic.

As mentioned, however, some commentators do not make Rav Pappa’s statement depend on the question whether liens are biblical. For example, in Responsa Maharam of Rothenburg, no. 258, the law is ruled in accordance with Rav Pappa: repayment of a debt is a mitzvah. Yet there it is not explained what the relation is between this and the law of lien. Rif, however, in Ketubot there and at the end of Bava Batra, cites Rav Pappa’s statement as halakha together with the ruling that liens are biblical. He even adds that Rav Pappa himself also holds that liens are biblical. Tur and Shulchan Arukh, in Choshen Mishpat 39, likewise hold that liens are biblical; yet in Choshen Mishpat 97:15 both also cite the rule that repayment of a debt is a mitzvah.

Several medieval authorities indeed expressed astonishment at Rif: how can he reconcile these two principles together? See Nahmanides on Bava Batra there, Ritva on Kiddushin there, Meiri on Ketubot there, and Shakh there. We shall return to this point in greater detail in the next chapter.

C. The Commandments of Lending and Their Relation to the Legal Layer

Introduction

In the previous chapter we saw that Rav Pappa’s rule, that repayment of debt is a mitzvah, is interpreted as an actual mitzvah. According to him, this is a commandment whose fulfillment depends on being personally subject to mitzvot, and the coercion applied to it is coercion with respect to mitzvot, not the enforcement of a genuine monetary debt, where seizure of assets serves to realize the debt and protect the lender’s rights irrespective of whether the debtor has fulfilled any mitzvah.

On the other hand, we have already mentioned that in the repayment of debts the court does proceed against assets, just as it does with full-fledged monetary liabilities, that is, with obligations of Choshen Mishpat. Moreover, failure to repay a loan is grounds for a legal claim by the lender, unlike obligations that belong only to the sphere of what is forbidden and permitted, that is, to Yoreh De’ah. It is difficult to suppose that Rav Pappa disputes all of this, for these points already appear in the Mishnah. We are therefore compelled to explain how a mitzvah, which at first glance belongs to the Yoreh De’ah type, becomes something operative and relevant in the legal sphere as well, that is, in Choshen Mishpat. That question is the subject of the present chapter.

Applying the Rule “The Burden of Proof Rests on the Claimant” to Loans

Rabbi Shimon Shkop, author of Sha’arei Yosher, in Gate 5 chapter 1, asks why, in a doubtful monetary dispute, we rule that the burden of proof rests on the party who seeks to extract money from another, rather than obligating the defendant to pay out of doubt under the usual rule that doubts in matters of prohibition are treated stringently. After all, if he does not pay the money, he may be in doubt concerning the prohibition “You shall not steal,” and seemingly he should therefore be stringent and pay out of doubt.

Rabbi Shkop explains there that the duty to return property to its owner does not derive from the prohibition “You shall not steal,” but from a system he calls the “laws of justice.” This is a system of principles that precedes formal halakha and determines the laws of ownership and acquisition. The prohibition “You shall not steal” comes to anchor those obligations in a formal halakhic prohibition, but it is not their basis. Therefore, he explains, if the legal rule says that the burden of proof rests on the one who wishes to extract money, meaning that there is no legal duty to pay the money, then failure to pay will not involve the prohibition “You shall not steal,” since that prohibition comes to undergird the legal obligations and not to add to them.⁵ We discussed this briefly in our essays on Parashat Noach, Parashot Acharei Mot-Kedoshim, and Parashat Chukat, 5767.

There, in chapter 2, Sha’arei Yosher goes on at length about the law of lien and the meaning of the mitzvah of repaying debt. In addition to the difficulties we raised above, he raises a parallel difficulty to the one with which he dealt in the previous chapter. If this is indeed merely a mitzvah and not a monetary obligation, then in a case of doubt we ought to rule stringently and require the borrower to repay the loan in order to fulfill the mitzvah, rather than applying the rule that the burden of proof rests on the claimant and leaving the money in the borrower’s hands on account of doubt. Unlike other cases of unlawful retention of money—such as a tortfeasor who must pay the injured party, a bailee who must return a deposit, or an employer who must pay a worker—in the case of a loan one cannot resort to the “laws of justice” solution. The whole point of Rav Pappa’s view is that in a loan there is no monetary debt at all, but only a mitzvah. If so, in this case one ought certainly to follow the ordinary halakhic laws governing doubtful cases.

Rabbi Shimon Shkop adds that it is very hard to suppose that Rav Pappa disputes the rule that the burden of proof rests on the claimant, since that rule is explicitly stated already in the Mishnah and in baraitot. He then proves through several powerful arguments that there is no escaping the conception of debt and lien as a debt in the legal-monetary sphere, beyond the mitzvah to repay. One of his proofs comes from the rule that a person acquires rights through the signatures of the witnesses on a document. This concerns a case in which a person undertakes to repay a loan even if no loan ever in fact took place. The signature on the document itself obligates him to pay. He brings additional cases in which a person becomes obligated to pay because of a formal act of acquisition that imposed this obligation without any loan. Now if what we are dealing with is only a mitzvah to repay a loan, rather than a legal debt, then the fact that a formal act of acquisition took place has no significance, since there was no loan. We are forced to conclude that debt includes a dimension of legal transaction, not merely mitzvah, and therefore a formal act of acquisition can obligate payment.

Coercion and Seizure of Assets

Rabbi Shimon Shkop further mentions there the issue of judicial coercion, namely that where a loan has not been repaid the court proceeds against the borrower’s assets, even according to the view that liens are not biblical. By contrast, with stipulated interest that can be recovered through the courts, the court does not proceed against assets. See Shulchan Arukh, Yoreh De’ah 161.

Several medieval authorities explain that proceeding against the borrower’s assets is not essentially different from ordinary coercion with respect to mitzvot. In their words—see Ra’ah as cited in Shitah Mekubetzet on Ketubot 86—”Rather than coerce him in his person, coerce him through his money.” Ra’ah there explains the discussion between Rav Kahana and Rav Pappa as follows:

And this is exactly what troubled him: since there is only a mitzvah here, then whenever he does not wish to perform the mitzvah, why do we proceed against his assets? And we answer: We learned, “When is this said? With regard to negative commandments…” and so forth, “they strike him until his soul departs.” Here too, in principle, one could coerce him in that manner. However, rather than coerce him in his person, coerce him through his money. And in cases of damages, where the Torah says, “The best of his field and the best of his vineyard he shall pay,” this means that such is his mitzvah: to pay from the best. And this is correct, as I heard from our teacher.

In other words, proceeding against assets is nothing more than a kind of coercion to compel him to fulfill his obligation. Instead of beating him and waiting for him to pay, since it is permitted to beat him, it is certainly also permitted to take money from him directly. That is surely no more severe than striking and injuring him. Therefore they take the money from him directly.

From Ra’ah’s words it emerges that proceeding against assets is merely a kind of pressure intended to force the borrower to repay the debt. But at the end of Bava Batra, Nahmanides says something more:

Some have raised a difficulty: can one really say that by Torah law we do not proceed against his assets? After all, the Torah speaks of payments: “The best of his field and the best of his vineyard he shall pay,” and so forth. But in my view this is no difficulty. For this is what we mean: since repayment by a debtor is a Torah mitzvah, and positive commandments are enforced, we too proceed against his assets and fulfill his positive commandment for him against his will.

Nahmanides answers the question of why one coerces repayment of a loan at all, and says that there is a rule of coercion for all positive commandments, as is explicit in the Gemara cited above. He then explains that proceeding against assets is merely another kind of coercion, quite similar to the view of Ra’ah.

But at the end of his remarks Nahmanides goes one step further than Ra’ah. He explains that taking the money is not merely a right derived from the right to beat the debtor—on the assumption that taking money is less severe than striking him—in order to force him to pay. If that were all, then taking the money would be nothing more than a kind of collateral intended to compel payment. Here, however, the money taken by the court is itself transferred to the lender. That means that proceeding against assets is not only coercion to observe the mitzvah, but is itself the fulfillment of the mitzvah against the will of the borrower.

At this point the question becomes all the stronger: why not do the same with interest? True, interest is not a monetary debt but a duty that belongs to the sphere of prohibition. The fact that it is recoverable in court—at least in the case of stipulated interest, that is, interest forbidden by Torah law—amounts only to coercion with respect to mitzvot, like coercion regarding any other mitzvah. But in light of Ra’ah and Nahmanides, one would expect the court there too to proceed against assets: according to Ra’ah, as a form of coercion with respect to mitzvot; according to Nahmanides, in order to fulfill the repayment on the offender’s behalf. If so, why is it that in the law of returning interest we coerce payment, but do not proceed against assets?

Clarifying the Difficulty: Two Assumptions Behind the Conventional View

The root of the difficulty lies in the distinction between proceeding against assets and coercion with respect to mitzvot. Above we gave the conventional explanation of this distinction: coercion aims to force the person to fulfill the mitzvah, whereas proceeding against assets is the performance of the act in his place. That is the first assumption.

Why is coercion applied in the realm of mitzvot, while proceeding against assets is applied in the realm of legal debts? This is rooted in the distinction between the two contexts, Yoreh De’ah and Choshen Mishpat. In a legal debt, that is, in Choshen Mishpat, from Reuven to Shimon, there is always another party, namely Shimon, who has been harmed. Therefore we decide to proceed against Reuven’s assets in order to protect Shimon’s rights, even if as a consequence the mitzvah itself is not fulfilled, since fulfillment of the mitzvah is incumbent on Reuven himself, and he did not do it; we did it in his place. By contrast, in ordinary mitzvot, that is, in Yoreh De’ah, even if they are commandments between man and his fellow, the payment does not arise from Shimon’s right but from Reuven’s duty,⁶ and therefore there is no place to proceed against assets. Here we coerce him to fulfill his obligation, but we do not proceed against his assets, because there is no legally injured party whose rights must be protected.

Thus the conventional understanding relies on two distinctions: first, the distinction between coercion and proceeding against assets; and second, the distinction between legal debt and mitzvah. If we now examine the words of Nahmanides and Ra’ah cited above, we will see that in fact each of them empties one of these distinctions of its force.

From Ra’ah’s words it emerges that even proceeding against assets, though it does not itself amount to performance of the mitzvah, nevertheless constitutes another form of coercion. If so, one can proceed against assets even in mitzvot in which there is no harmed party, in order to force Reuven to fulfill his duty. Ra’ah thus erases the first assumption, namely that there is a meaningful difference between proceeding against assets and coercion.

Nahmanides too effectively erases one of the distinctions. From his words it emerges that one may proceed against the assets of a person obligated in mitzvot, because according to him proceeding against assets is the fulfillment of the mitzvah in that person’s stead, somewhat like the rule, “We coerce him until he says, ‘I consent.'” That is, proceeding against assets is indeed not coercion, but it nevertheless constitutes fulfillment of the mitzvah, even though done against the obligor’s will. This runs contrary to the second assumption just described, namely the distinction between debts and mitzvot. If so, even on Nahmanides’ view it is not clear why we do not proceed against assets in the case of returning interest, or in other duties that belong to the sphere of prohibition. Nahmanides thus erases the second distinction, between mitzvot and debts, because in his view proceeding against the debtor’s assets against his will does count as fulfillment of the mitzvah.

Rabbi Shimon Shkop’s Explanation

Rabbi Shimon Shkop explains the distinction between returning interest and repaying a debt in terms of whether the mitzvah is fulfilled when the court proceeds against the assets of the obligor against his will. In the case of interest, the mitzvah is not fulfilled in that way, because the lender is under an obligation to return the interest that he took. By contrast, in the case of a lien arising from a loan, the mitzvah is fulfilled even when the money is taken against the borrower’s will, because the lender has a right to take it, and therefore the borrower cannot prevent him from acquiring the money. See there for his proofs of this distinction.

In any event, it is clear that Rabbi Shimon Shkop’s distinction relates only to Nahmanides’ approach, since he makes everything depend on whether the mitzvah is fulfilled through proceeding against the debtor’s assets or not. As something self-evident, he also ties this question to the question whether the money can indeed be acquired in this way by the one to whom the court gives it. In the case of returning interest, the money would not be acquired in this manner by the borrower who paid the interest; in the case of repaying a loan, it would be acquired by the lender. See there for his proofs.

He explains the problem of doubt in the same way. In the case of a loan, when there is doubt whether the borrower owes the money, he is under no obligation to be stringent as in ordinary cases of halakhic doubt, because if the laws of justice determine that there is no lien, then he is not obligated in the mitzvah to repay either. In other words, a legal obligation stands in the background of the matter, just as he explained in chapter 1 with respect to other debts.

But then, of course, the difficulty we raised above returns. If we are indeed dealing also with a legal debt—and certainly according to the view that liens are biblical—then why do we not collect the debt from orphans as well? He would presumably explain that repayment is ultimately nothing but the fulfillment of a mitzvah. In other words, the repayment of the debt and the realization of the lien are themselves fulfillment of a mitzvah; therefore, even though a legal lien exists, one does not collect the money from minor orphans.

Another Possibility

It seems that a simpler way to understand the distinction between repaying a loan and returning interest belongs on an entirely different plane. As we suggested in the first chapter, one may view the loan as a kind of gift, not as part of the world of ordinary monetary transactions. When Reuven lends money to Shimon, he gives the money to him as an outright gift, and the money joins Shimon’s property. At that stage there is no reciprocity, as would have been required by the nature of monetary transactions. That is, no debt is created in exchange for the transfer of the money.

At this point the Torah comes and imposes on Shimon a duty of repayment to Reuven. That duty is legally defined through a lien on his assets, at least according to the view that liens are biblical. But at its foundation it is a mitzvah, not a genuine monetary debt. The legal debt does exist, but it is imposed by the Torah only on one who is subject to this mitzvah. It is not created as a result of the transaction, because this is not a transaction at all, but rather a form of giving.

According to this understanding, in a loan and the lien it generates, the lender has no independent right in either the borrower’s assets or the person of the borrower. The lender’s right derives from the borrower’s obligation, that is, from his mitzvah, to pay. By contrast, in the return of interest, the borrower’s money remains in the lender’s hands. The duty to pay, that is, to return the interest, derives from the borrower’s right, because the interest money is still regarded as his.

Now it becomes clear why, in the case of a loan, one does not collect from orphans, at least according to Rav Pappa. The orphans are not subject to mitzvot, and therefore no monetary lien is created either. According to Rav Pappa, the lien is a result of the mitzvah. Someone who is not commanded in the normative-religious sphere is not liable in the legal sphere either.

We can now also understand why in the case of a loan the court does proceed against assets, whereas in the case of returning interest it does not. In a loan, it proceeds against assets because once the person is commanded to repay, a lien and monetary liability are also created. By contrast, a lender who took interest owes nothing in a legal sense to the borrower who paid it. He has only a mitzvah to return the interest.

The same point may be formulated differently. In repaying a loan, the mitzvah is that the money make its way back. This is an outcome-commandment. Therefore there is nothing problematic about proceeding against assets, because even if we are the ones who transfer the money to the lender, the mitzvah has still been fulfilled. Precisely for this reason, the obligation in the mitzvah creates a debt, in order to place the obligation within the framework of a monetary lien. That is the expression of the fact that this mitzvah is a mitzvah of result. What matters is that the money return, not that the obligor himself be the one to transfer it. True, the duty rests on him, but if he does not fulfill it, we will compel its fulfillment—and before coercing his person, we may coerce through his money—that is, we will bring it about against his will. This formulation fits Ra’ah as well, and not only the language of Nahmanides.

By contrast, in returning interest the mitzvah concerns the act of returning the interest, not merely the fact that the interest be returned. The lender is holding his own money, since the borrower transferred the interest to him knowingly and willingly. Rather, the lender bears a mitzvah to rectify the wrong. In that case the mitzvah concerns the lender’s action, not the outcome that the interest be returned. Therefore there is no place there for proceeding against assets, because in such a case the mitzvah would not be fulfilled.

D. A Look at the Remission of Debts

Introduction

We conclude the essay with a brief discussion of the relation between the picture presented thus far and the matter of debt remission, which is also included in the passage from our parasha quoted above. The Torah commands us to release loans that were given before the Sabbatical year. As we saw at the outset, there is both a positive and a negative commandment here: a positive commandment to release the debt, and a negative commandment forbidding us to press for payment of a debt that has been released. In this chapter we will examine several implications of these two mitzvot for our discussion of the nature of loans in general.

Debt Remission: A Royal Annulment?

First, it is important to know that there is a dispute among medieval authorities as to whether loans given before the Sabbatical year lapse automatically, by way of what the Talmud calls a royal annulment (see Babylonian Talmud, Gittin 37b), or whether there is a mitzvah on the lender to release them, as though he were waiving the debt. According to the great majority of medieval authorities, the debts lapse on their own. But the view of Yere’im, no. 164, is that there is a mitzvah on the lender to release the debt, while the debt does not lapse automatically.⁷

Already here one can point to a connection with our discussion. If a loan is indeed, at its root, an outright gift, and there is no independent lien on the borrower’s assets, but rather the Torah imposes on him a mitzvah to repay that expresses itself in a monetary lien, then it is very reasonable to say that where the Torah forbids collection it simply will not impose such a mitzvah, and consequently no monetary lien will arise. If so, the view of Yere’im does not fit the picture presented above, whereas the view of almost all the other medieval authorities accords very well with what we have said. Yere’im’s view expresses a conception according to which, by its very nature, the loan itself creates a monetary debt and lien, that is, it is a kind of reciprocal transaction.

The Prohibition on Pressing for Payment

According to Yere’im, it is fairly easy to understand what the mitzvah to release the debt means. Were the person not to release it, the debt would not be released; therefore the mitzvah has clear practical meaning. According to the other medieval authorities, however, this mitzvah seems very puzzling. What exactly are we commanded to do here? The debt lapses regardless of our wishes, so what is the positive commandment of release?

It seems that according to those views, this “mitzvah” is not a commandment in the sense of an instruction to do something, but in the sense of a biblical legal provision. Some mitzvot consist primarily in a halakhic definition, not in a command to perform an act or create a certain state. Maimonides, in positive commandments 95-96, gives two examples of this. For instance, the laws of ritual impurity and purity are defined in halakha as mitzvot, yet they do not command anything. There is no prohibition on an Israelite becoming impure, nor is there any obligation to purify oneself. These “mitzvot” are simply halakhic definitions, according to which someone who touches a corpse or a creeping creature under certain circumstances is impure, with various halakhic consequences that are themselves counted as commandments, such as the prohibition on entering the Temple in a state of impurity. This is indeed law, but not a “commandment” in the literal sense. On that basis, one may say that the mitzvah to release debts is likewise nothing more than a legal definition: at the end of the Sabbatical year, the debt is nullified and the borrower is exempt from payment. There is no command addressed to the lender here, but only a legal-juridical definition.

A more basic problem arises specifically with respect to the negative commandment. As noted, there is also a prohibition against pressing the borrower for a debt that has been released. Here it is very difficult to see the “mitzvah” as a definition without practical command. After all, a negative commandment must be capable of being violated somehow. How does one violate this prohibition? Does it somehow occur automatically through the Torah? The addressees of the commandments are we ourselves, not the Torah. Therefore, with respect to the negative commandment, Yere’im’s conception seems almost necessary. It is hard to understand that prohibition if the debt lapses on its own. At first glance, this prohibition threatens the entire picture presented thus far. Yet the problem does not confront only us, since all the medieval authorities except Yere’im face precisely the same problem.

Some have wanted to say that this prohibition forbids going to the borrower and demanding repayment of the loan. That explanation seems problematic, because it is hard to see what prohibition there could be in going to a person and demanding that he give me money that he does not owe me at all. If I were to approach a random person on the street—not in court—and demand that he pay me a debt when in fact he never borrowed from me, would I be violating any prohibition? That seems highly implausible. If debts lapse automatically, as the majority view holds, then after the seventh year this debt simply no longer exists. If so, a person who demands it is doing exactly what was just described: demanding a debt that does not exist. It is hard to see what prohibition could be involved in such an odd act.

Repayment of a Released Debt

The Sages say that despite the duty of remission, there is nevertheless value in repaying a debt that has been released. Maimonides rules accordingly in Mishneh Torah, Laws of Sabbatical and Jubilee 9:28:

Whoever repays a debt over which the seventh year has passed is approved by the Sages. The lender must say to the one who repays, “I release it, and you are already exempt from me.” If he says to him, “Nevertheless, I want you to accept it,” the lender may accept it, as it is said, “He shall not press”—and here he did not press. And he should not say to him, “I am giving it to you on account of my debt”; rather, he should say, “It is mine, and I am giving it to you as a gift.”

And in 9:29 there:

If he returned the debt and the lender did not say this to him, the lender should maneuver the conversation until the debtor says, “It is mine, and I have given it to you as a gift.” If he did not say it, the lender should not accept it; rather, the debtor should take his money and go.

These halakhot are based on the conception that the remission of debts is intended to care for the weak and the poor. Therefore, it is fitting that a person who does not need the money and is capable of paying the debt should pay it, and the Sages therefore approve of one who does so.

But if that is the point, then halakha should have established an exemption from repayment only for one who cannot pay. Why was the remission established as a sweeping rule? We see in 9:29 that the lender may even maneuver the borrower into saying that the money is a gift, so that the lender may keep it. In other words, this is a legitimate course of action, and the Sages even instruct the person how to receive the money.

Some have understood from here that the point of the remission of debts is not necessarily concern for the weak, but the moral education of a person to relinquish what is his. In other words, there is no obstacle to his receiving his money back, provided that this be done voluntarily and not as an obligation. The lender has relinquished what was his, and now the borrower may—and indeed should—give him his money as a gift. This conception indeed fits what emerges from Sefer HaChinukh, commandment 477. But from a number of other medieval authorities it appears that they see the main point of debt remission as concern for the needy. In the next section we will suggest another explanation of the nature of these two mitzvot, the positive and the negative.

Conclusion: The Debt Still Remains

It seems that these halakhot imply that even if the debt itself has been released, some residue of it remains. When the borrower repays the debt, he is not giving a true gift; rather, he is paying a debt that he is under no obligation to pay. What does that mean?

It may be that the meaning of this strange picture is that the remission of debts does not annihilate the debt itself. It only removes the mitzvah imposed on the borrower to repay the debt, and also the lien derived from that mitzvah.⁸ This is very plausible in light of the picture we presented above, according to which the mitzvah to repay is a commandment the Torah imposes on the borrower, whereas the debt itself is a result of the very fact of the loan. If so, when the seventh year passes, there is still a debt, but there is no mitzvah to repay it. In such a state, when the borrower comes to repay the debt, he is not giving a mere gift, but paying the debt. Yet no duty is imposed on him to do so, and therefore no lien is created, and the lender cannot sue him for it.

At this point we may perhaps understand the negative commandment that forbids pressing for this debt. It may be that the mitzvah to release the debt means not only a legal definition, but also a mitzvah imposed on the lender to extinguish the loan, so that not only will there be no mitzvah to repay, but there will no longer be a debt at all. If the lender does not do this, a state is created in which there is a debt but no mitzvah to repay it. In such a state there is a moral duty on the borrower to repay, and therefore the Sages approve of one who does so. However, if the borrower is needy, then the lender indeed has a duty to extinguish the debt itself, over and above the Torah’s own removal of the mitzvah to repay. A lender who does not do this violates “He shall not press.” A lender who comes to demand the debt is thereby saying that the debt still stands, even though there is no mitzvah to repay it. Such a demand is a violation of “He shall not press.” It is now clear why this is not comparable to someone on the street demanding from another person an imaginary debt. Here the debt really does continue to exist, and there is even a moral duty to pay it when one is able. Therefore there is a prohibition against leaving such a debt in force toward the needy.

From Maimonides’ wording above it seems possible that he goes one step further. When the borrower comes to repay the debt, the lender must release the debt itself, and the repayment then becomes a true gift. In other words, there is a duty to extinguish the debt even with respect to a borrower who is not needy. Such a borrower should nevertheless come and give the money to the lender, at least as a gift. That is why Maimonides writes in 9:28 that only after the lender tells the borrower that he is releasing the debt may he accept the money, because only then has he not violated “He shall not press.”

Footnotes