Q&A: A Question Regarding “You Shall Not Enter His House to Take His Pledge” and “A Person May Enforce the Law for Himself”
A Question Regarding “You Shall Not Enter His House to Take His Pledge” and “A Person May Enforce the Law for Himself”
Question
Hello Rabbi,
In my study of the passage, I found that some of the medieval authorities limit the prohibition of seizing collateral specifically to loans—that a lender may not take collateral from the borrower because of the loan (and likewise an agent of the religious court in his house, etc.).
I also saw in the words of the Mordechai and others that when they discuss the relationship between “…to take his pledge” and “a person may enforce the law for himself,” the rule that a person may enforce the law for himself applies when someone takes an object that is clearly and definitively known to be his.
I remember from one of our classes at Matan that the Rabbi explained a loan as a gift that the lender gives the borrower, and the debt is something newly created; the borrower does not return to the lender that exact same debt.
I wanted to ask whether, in the Rabbi’s view, this could explain the limitation on self-help in the case of a lender—for there is no definite object belonging to the lender that is in the borrower’s possession, since the loan has already been given as a gift.
And if so, how should we relate to objects associated with the loan?
I also wanted to ask on the basic point itself: where is the source for this conception regarding a lender? Can it already be explained by the general rule that “a loan is given to be spent,” such that for this rule to exist we must say that the loan belongs entirely to the borrower?
Thank you very much, and wishing you good health.
Answer
Hello L.,
Good to hear from you. I hope you are well in these turbulent days.
I indeed argued this in Maimonides’ view (it seems to me there should be a summary of mine that was sent to you women). This is exactly the meaning of “a loan is given to be spent,” not as people usually explain it—that there is no particular coin in the borrower’s possession that belongs to the lender—but rather that the borrower has no coins of the lender’s at all.
A clear source for this law in Maimonides is his Commentary on the Mishnah at the beginning of chapter 10 of tractate Shevi’it (the difference between a loan and a deposit, and other things that the Sabbatical year does not cancel). Also in the Laws of Sale, where Maimonides rules that with payment for a purchase, unlike a loan, one can effect betrothal and acquisition. And a source for this in the Talmud is in Nedarim regarding “driving away a lion.” The Talmud there says that one who pays off another person’s debt is considered to be “driving away a lion” and it is permitted. There it is written almost explicitly, and it requires further analysis how those who understand a loan in the conventional way would explain it.