Limits on Taking Security

Bava Metzia | Allon Ledder | 17 years ago

A lender is generally entitled to take security for a loan. However the Mishnah () contains a number of d’Oraita limits to a lender’s ability to exact security from a debtor. The common thread running through these limits is that they demonstrate the Torah’s concern for people that are particularly vulnerable.

The Gemara (Megillah 31a) quotes R’ Yochanan who states that wherever you find the greatness of Hashem, there you find His humility. R' Yochanan provides three quotes by way of example – from the Torah, the Nevi’im and the Ketuvim. Each quote contains a reference to Hashem’s greatness which is immediately juxtaposed with Hashem’s concern for the most lowly and vulnerable members of society – the orphan, the widow, the stranger, the contrite and the lowly of spirit. This concern for the vulnerable is clearly seen in our Mishnah where the focus is on protecting the vulnerable, particularly when they are most at risk.

First, the Mishnah quotes the pasuk that prohibits the creditor or the agent of the Bet Din from entering the debtor’s home to obtain security. To protect the dignity of the debtor, the creditor must wait outside for the debtor to bring the security to them. This law only applies when the loan is already due and the debtor is in default. This is typically when the debtor is most vulnerable and in need of protection. As a further protection for a poor debtor, the Torah requires the creditor to return the security when the debtor needs it. This protection does not apply to the debtor’s heirs (if the debtor dies) because they are not in a similar vulnerable situation.

The Mishnah then quotes the pasuk that prohibits taking any security from a widow at the time that she is in default. As a particularly vulnerable member of society, the Torah affords even greater protection to widows. The Sefer HaChinnuch (Mitzvah 591) explains that a reason for this mitzvah is that Hashem wants us to acquire the quality of pity so He commanded us to take pity on the widow, whose heart is broken and is anxiety stricken. According to Sma, the law extends to a divorcee because she has no husband to watch over her and she is out of her father’s jurisdiction.

The final pasuk that the Mishnah quotes prohibits taking as security items used to prepare food. Here again, the Torah provides extra protection for a vulnerable debtor. If the creditor takes two objects that are both required for the same act of food preparation the creditor will receive a double punishment. Some commentators include in this prohibition items that are used by the debtor to earn their livelihood (Tur, Choshen Mishpat 97:17).

We see that the Torah places a three fold limit on the creditor’s right to take security – some items may never be taken as security, some items may be taken but must be returned to a poor debtor when they need them and security may never be taken from a widow. The Torah’s focus is to protect the vulnerable from excessive financial hardship and to safeguard their dignity.

The principle of lifnim meshurat ha’din states that it is fitting for a person not to base their deeds on the strict letter of the law but rather to act leniently beyond the requirements of the law. In many cases, the Rabbanim passed various takanot to prevent people from exercising their rights to the detriment of others. In some cases, including those discussed above, the Torah itself sets limits on the ability of a person to exercise their rights if it would be to the detriment of other particularly vulnerable persons.

Perhaps R’ Yochanan’s observation can be understood as follows. The reason why Hashem’s greatness is juxtaposed with His humility is because it is this very humility and this concern for the lowly and vulnerable that is actually a manifestation of His greatness. This is well worth bearing in mind when we deal with those that are less fortunate than us as we seek to fulfil the mitzvah of emulating Hashem and walking in His ways (Sefer HaChinnuch mitzvah 611).

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