IMPRISONMENT FOR DEBT


IMPRISONMENT FOR DEBT, the imprisonment of a debtor who fails to pay his debt on or before the date due.

Prevalence in Other Legal Systems

Influenced by Roman law (see *Execution civil law)), imprisonment for debt was the most common means of personal coercion found in the debt collection procedures of various medieval legal systems. It developed from the institution of slavery for debt, as practiced in ancient legal systems, but was aimed at restraining the debtor's personal freedom rather than exploiting his labor potential. Imprisonment was imposed both on the debtor of means, who concealed his assets and thus attempted to evade payment of the debt, and on an impoverished debtor who owned no property at all. In certain periods debtors were incarcerated in "private" prisons, where they were subjected to various hardships at the creditor's behest, while elsewhere incarceration in public prisons only was allowed. Imprisoned debtors languished under difficult conditions and the discussion of imprisonment procedures and conditions occupies a prominent part of the legal and general literature of the Middle Ages (see J. Kohler, Shakespeare vor dem Forum der Jurisprudenz (19192), 1–160).

Modern legal systems have introduced far-reaching changes into the institution of imprisonment for debt. In most continental systems it has been completely, or almost completely, abolished; in England and in many states in the U.S. imprisonment for debt is still practiced, but is only imposed in the case of a debtor of means who evades payment of the debt, and the period of imprisonment is limited and prescribed (see H.S.G. Halsbury, Laws of England, 2 (19533), 638ff.; E. Pfiffner, Schuldverhaft und Personalarrest im Vollstreckungsverfahren, 1957).

Biblical and Talmudic Sources

Originally, Jewish law absolutely rejected the concept of imprisonment for debt. Biblical law prohibits the creditor from prejudicing the debtor's basic necessities of life. The creditor is enjoined to "stand outside" and not to enter the debtor's home in order to collect his *pledge (Ex. 22:24–26; Deut. 24:6, 10–12), a fortiori, therefore, it is forbidden to imprison the debtor (see also *Execution, civil law). It is noteworthy that at that time Jewish law in general gave only the most limited recognition to the use of imprisonment, even in the field of criminal law (see *Imprisonment). This absolute prohibition was maintained in talmudic times and for a considerable time thereafter. Thus, Maimonides laid down: "but if the debtor is found to have no assets or only such as form part of the "arrangement" (see *Execution, civil law) that is made for the debtor, then the debtor is allowed to go his way and he is not imprisoned" (Yad, Malveh 2:1).

The Post-Talmudic Period

This attitude of Jewish law underwent a substantive change in the 14th century, the beginnings of such change being already traceable to the 13th century. In the latter half of the 13th century a vigorous halakhic debate ensued regarding the continued validity of the accepted rule against imprisonment for nonpayment of a debt. These doubts were strongly motivated by socioeconomic factors of the time. The development of commercial life and the practice of credit facilities on the one hand, and the prevalence of concealment and fraudulent disposition by debtors of their assets to evade their *obligations on the other hand, obliged creditors – and eventually even the borrowers as well – to seek more effective means of debt collection than those hitherto available under Jewish law. The prevalence of evasion of debt and concealment of assets on the part of debtors – by way of a fictitious assignment or alienation thereof to a wife or minor children, or by way of fictitious *admission of indebtedness to a relative, thus giving the latter a preferential right to recover out of the debtor's property – is widely referred to in the responsa literature of contemporary scholars (see, e.g., Resp. Rashba, vol. 2, nos. 225, 283, 312, 360; vol. 4, no. 158; Resp. Rosh, nos. 78:1 and 2).

Although these halakhic scholars employed various measures to render such fraudulent dispositions invalid (ibid., and Resp. Rosh, no. 78:3), they remained adamantly opposed to the sanction of imprisonment of debtors. It became customary, however, as was the practice in the contingent legal systems, for the parties themselves to stipulate expressly in the bond of indebtedness that the creditor would have the right to imprison the debtor upon his failure to pay the debt. Nevertheless, it is recorded that Solomon b. Adret held that a debtor could not be imprisoned on the strength of such a condition, even though he had been concealing his assets in the particular case (Resp. Rashba, vol. 1, no. 1069). Similarly, Asher b. Jehiel rejected the possibility of the debtor's imprisonment in two other cases, on the ground that the Bible permitted the deprivation of an individual's liberty only in the case of a thief who lacks the means of making restitution and is sold for his theft (Ex. 22:2; see also *Execution, civil law), but not for any other kind of debt; he added that even an express condition between the parties providing for the debtor's imprisonment is void and unenforceable, since it is a condition relating to one's person (tenai she-ba-guf), and not one concerning a monetary matter (tenai she-ba-mamon) and there is no freedom of contract in respect of the former (see *Contract), which is in the nature of a Jus Cogens, rather than a Jus Dispositivum (Resp. Rosh, 68:10; 18:4). This opinion was still followed by Jacob b. Asher and by other scholars of this period (Tur, ḤM 97:31; Maggid Mishneh and Migdal Oz, Malveh 25:14).

Certain scholars of this period, however, already acknowledged a substantive change in the law concerning the imprisonment of a debtor. It was first mentioned in Germany by Alexander Suslin ha-Kohen, who decided – on the basis of a liberal interpretation of a talmudic statement used as a peg for his opinion rather than as proof – that "a person who has the means and fails to pay shall be imprisoned" (Sefer ha-Aguddah, Shab., no. 150). A more detailed account of the socioeconomic background to, and the evolution of, the relevant change in the law, is to be found in the responsa of *Isaac b. Sheshet Perfet (Ribash). Bar Sheshet was asked to decide on the validity of an agreement between a creditor and his debtor providing for the latter's imprisonment upon his failure to pay the debt (an agreement current among the Jews at this time – see Elon, Ḥerut ha-Perat…, 137–40). He delivered a reply comprised of three parts (Resp. Ribash, no. 484). In the first, he gave a detailed exposition of the halakhic reasons for opposing the imprisonment of the debtor, despite an express condition to this effect: since regarding the creditor-debtor relationship the Torah stresses that the debtor shall not be deprived of his basic necessities for survival, his personal imprisonment is certainly prohibited: and since even an ordinary laborer may retract from a work contract (see *Labor Law), it therefore follows that a debtor may not be imprisoned and deprived of his personal freedom in such a drastic manner; that a condition of the above-mentioned kind is a tenai she-ba-guf (see above) in respect whereof there is no freedom of contract; and in deciding against imprisonment for debt, Asher b. Jehiel had already established a precedent in the matter (see above). In the second part of his responsum, Bar Sheshet described the current position in the Saragossa community, of which he was spiritual leader, and noted the existence of a takkanah enacted by the local community (see *Takkanot ha-Kahal) whereby the judges used to imprison a debtor who had agreed to submit to such action upon his failure to repay the debt; a debtor could be imprisoned even in the absence of such a condition if he was unable to provide sureties for payment of the debt. Bar Sheshet added that when he wished to object to the takkanah as being contrary to biblical law, he was answered that this was a regulation in the interest of trade (takkanat ha-shuk), aimed at swindlers and intended so as not to have "the door bolted before borrowers," which persuaded him not to interfere with the practice. In the third part of his responsum, Bar Sheshet explained the halakhic basis for this decision, in the course of which he introduced a new approach to the question of imprisonment for debt in Jewish law, an approach founded on two basic premises: first, the doctrine that "payment of a debt is a mitzvah, the upholding whereof shall be compelled" (Ket. 86a; see also *Obligations, Law of), which Bar Sheshet interprets liberally, allowing for imprisonment to be included as one of the means of compulsion; secondly, that compulsion by imprisonment is only permissible in circumstances which warrant the inference that the debtor is a man of means deliberately concealing his property from the creditor, but when the debtor is a pauper without any means of payment it is clear, Bar Sheshet holds, that his imprisonment is forbidden – notwithstanding his own express consent thereto – since in this case the injunction "You shall not be a creditor unto him" (Ex. 22:24) applies.

This innovation, which distinguishes, for the purposes of imprisonment, between a debtor of means evading payment and an impoverished debtor, was not lightly accepted in the Jewish legal system. In the following century Israel *Isserlein vigorously opposed imprisonment for debt under any circumstances whatsoever (Leket Yosher, YD, pp. 79f.), and it was likewise opposed by Joseph *Caro (Sh. Ar., ḤM 97:15) and Isaac *Adarbi (Divrei Rivot, no. 302). The innovation was accepted, however, by such scholars as Samuel de *Medina (Resp. Maharashdam, ḤM no. 390), Elijah b. Ḥayyim (Resp. Ranaḥ, no. 58), and Moses *Isserles (Rema, ḤM 97:15) and thereafter it became accepted in Jewish law (see e.g., Yam shel Shelomo, BK 8:65; Levush, Ir Shushan 97:15; Sma, ḤM 107, n. 10; see also Elon, Ḥerut ha-Perat…, 172ff.) In a series of additional directives, special conditions of imprisonment were laid down, to be applicable even where the imprisonment of the debtor was considered permissible. Thus, for example, it was prescribed that a lenient form of imprisonment should be imposed (Takkanot Megorashei Castilia be-Fez (1545), quoted in Kerem Ḥamar, 2:4a, takkanah 22), and only in a "dignified prison," i.e., one with proper standards of cleanliness, sanitation, and hygiene (Ḥikekei Lev, ḤM no. 5).

Tax Debts

The halakhic scholars took a different and more stringent attitude toward the evasion of tax payments. The various governments under whose protection the Jews resided in post-talmudic times imposed heavy taxes, as "toleration money," on their respective Jewish communities and any delay in payment put the Jews in danger of persecution and expulsion. Communal leaders and halakhic scholars also attached much importance to taxes levied on individual members for the upkeep of communal services, a source of revenue on which organized communal life was largely dependent (see *Taxation). Accordingly, even in times when the scholars were absolutely opposed to imprisonment for debt, it was nevertheless permitted in respect of a tax debt. (It is possible that Rashi to Pes. 91a and Hassagot Rabad, Malveh 25:14, favoring imprisonment for debt, were intended to refer to a tax debt, since in their time imprisonment for an ordinary debt had not yet been permitted.) Asher b. Jehiel, who was strongly opposed to imprisonment for debt, noted that the prohibition applied to a debt between a man and his neighbor and that in respect of "the king's tax" it was customary for the communities to imprison a defaulter because "the law of the land is the law" (see *Dina De-Malkhuta Dina; Resp. Rosh 68:10). Elsewhere (Resp. Rosh 7:11) he added the important detail that it was customary in communities of the Diaspora to imprison debtors for failure to pay a communal tax, such debtors not being brought before the court but adjudged by the city elders in accordance with local custom (see also Zikhron Yehudah no. 79).

Notwithstanding this stringent attitude of the scholars toward a tax debt, it would seem that even in this case it was customary to distinguish between a debtor of means and a pauper, although there are indications that in later times imprisonment for a tax debt was imposed without distinction (see Elon, Ḥerut ha-Perat…, 207 n. 365). An equally stringent approach was customarily adopted by communal leaders in the case of imprisonment for the nonpayment of a fine (see below; see also *Taxation).

Takkanot Ha-Kahal Concerning Imprisonment for Debt

One of the legal sources for the continued development of Jewish law has been the takkanot enacted in all fields of the law throughout the ages. Legislation of this kind was mostly instituted by the halakhic scholars, but a substantial part – particularly from the tenth century onward – stems from takkanot enacted by the community through its leaders. A great deal of enactment of this kind was directed toward the problem of imprisonment for debt, because of its close connection with the social and economic conditions in the community. The takkanot mentioned by Bar Sheshet and Asher b. Jehiel (see above) are early illustrations of such enactments on the subject of imprisonment for debt and many instances of these can be found in the takkanot ha-kahal of Poland, Lithuania, and Germany, dating from the end of the 16th century onward. The end of the 16th century until the middle of the 17th century was a period of severe economic crisis for the Jews of these countries, giving rise to an increase in cases of nonpayment of debt and bankruptcy (see Elon, Ḥerut ha-Perat…, 172ff.). Numerous communal takkanot from this period deal with boreḥim (a term originally applied to runaway debtors or bankrupts and later to all defaulting debtors), with much attention being paid to the question of imprisoning the debtor. These takkanot often permitted imprisonment of the debtor, if only for a short period, though he might be a pauper without means of making payment, a fact that evoked strong criticism from the halakhic scholars.

In takkanot of the Cracow community (1595), a precise procedure was laid down for the recovery of a debt from a debtor pleading the lack of means to make payment: first, the pronouncement of a ban for three days, followed – in default of payment – by imprisonment of the debtor for eight days in the communal prison (the "dudik"; see *Imprisonment); thereafter, an investigation for a period up to 30 days, to ascertain the truth or otherwise of the debtor's plea. The automatic eight-day imprisonment of the debtor, even when he is likely to be a pauper (except when he is known to be the victim of accident, fire, or robbery) was justified by the initiators of the takkanah because of the increase in the number of swindlers and their evil ways (see M. Balaban, in JJLG, 10 (1912), 335). Nine years later it was laid down in another Cracow takkanah that, "on account of the existing situation," any debtor pleading a lack of means to repay a debt exceeding "200 Polish gold coins," would be liable to imprisonment for a period not exceeding three months, unless "it is known that he has suffered some loss as a result of fire or robbery, etc." and provided that the debtor be released for one month after each month of imprisonment (see P.H. Wettstein, in Oẓar ha-Sifrut (1891–92), 600f.). These takkanot prescribed imprisonment not only in respect of a debt arising from a loan, but also for debts arising from tort, nonpayment of a teacher's salary, and taxes (M. Balaban, in: JJLG, 11 (1916), 99f.). In the case of a tax debt, imprisonment was prescribed "until the tax and expenses be paid," such exceptional severity being justified at the time on the grounds that many considered themselves at liberty to ignore tax payments without considering that this amounted to "robbing the public," for which reasons the public was to be carefully warned about the matter (M. Balaban, loc. cit., 356).

This general trend, at times increased by additional stringent measures, is reflected in a long series of communal takkanot from the 17th and 18th centuries. The takkanot of the *Council of Four Lands of 1624 provided that a debtor pleading a lack of means was rendered liable to imprisonment for a period of one month (except in the clear case of an "act of God") and that a debtor known to have willfully squandered his money could be imprisoned for one year. Similar provisions are to be found in the takkanot of the Council of Lithuania (1623–52) and the Council of Moravia (1650–59) and in the takkanot of the communities of Posen (1642), Nikolsburg, and Tiktin (in the first half of the 18th century). The main difference between the various takkanot lay in the period of imprisonment laid down in each case, the fact of imprisonment being recurringly justified as an emergency measure, specifically designed to cope with the ever-increasing number of swindlers (for details, see Elon, Ḥerut ha-Perat…, 180–225).

An instructive takkanah, illustrative of Jewish law's humane approach toward the debtor – despite its far-reaching sanction of the use of imprisonment – is one enacted in 1637 by the Council of Lithuania, which obliged a creditor who demanded the debtor's imprisonment to provide for the latter's sustenance as determined by the court, but gave the creditor the right to recover the cost of this together with the debt (S. Dubnow (ed.), Pinkas ha-Medinah [Lita], p. 70 no. 333); fulfillment of this requirement by the creditor was a precondition to the imprisonment of the debtor. This takkanah marks a significant divergence from the prevailing trend in other legal systems of that time, in which no consideration was given to the needs of the debtor during his imprisonment.

The provisions of the takkanot ha-kahal regarding the automatic imprisonment – even if only for a very short period – of any debtor failing to make payment, represented a deviation from the fundamental principle of Jewish law against prejudicing an impoverished debtor in any manner or form, and consequently evoked strong criticism from halakhic scholars. It must be borne in mind that such authority as Jewish law confers on communal leaders to enact takkanot, even though they may be contrary to a particular rule of Jewish law, is confined to the fields of the civil and criminal law, and does not apply to matters of ritual law (issur ve-heter). The question of imprisoning an impoverished debtor was looked upon as a matter falling within the sphere of ritual law, by which it was forbidden. Thus R. Joel *Sirkes (first half of the 17th century) stated: "those imprisoning even someone who has no means to pay, in terms of communal takkanot, have no authority to rely on and it was also written by Ribash that it is forbidden to seize the [debtor's] person; and the community has no power to make such an enactment in contravention of an issur" ("prohibition"; Baḥ, ḤM 97:28). Similarly, 100 years later Jonathan *Eybeschuetz states: "in our time it is the custom simply to imprison a debtor who has no means to pay and no protest is made; perhaps all this is done on the premise that everyone is concealing his assets; the matter requires reflection, for they have no authority to rely on" (Urim ve-Tummim ḤM 97, n. 13). It is clear that Eybeschuetz was not quite reconciled to the attempt to justify the indiscriminate imprisonment of debtors on the grounds of the existing social and economic realities, nor to the presumption that seemingly called for every debtor to be suspected in advance of concealing his assets. Indeed, eventually these takkanot ha-kahal which sanctioned even the imprisonment of impoverished debtors – if only for a short and fixed period – came to be rejected by the Jewish legal system, since they amounted to a direct and material contradiction of the fundamental principle of Jewish law that imprisonment is not to serve as a punitive measure, but as a means of recovering a debt when the debtor is able to pay but conceals his assets and evades payment (see also *Taxation).

In the State of Israel

The problem of imprisonment for debt engaged the attention of the Knesset for a period of ten years. In 1957 a bill was introduced which proposed the complete abolition of imprisonment for debt, a proposal which was, however, rejected by a majority of the Members on the grounds that it did away with an important means of debt recovery in the case of stubborn debtors. In the Knesset debates on this and other related bills introduced from time to time, the attitude of Jewish law toward the problem was frequently cited – those who favored imprisonment for debt stressing the change in the course of time from its complete prohibition to its eventual permissibility in the light of changed economic and social circumstances – with reference to a stubborn debtor of means. This attitude of Jewish law was finally accepted by the Knesset and embodied in the Execution Law, 5727 – 1967. Under this law (secs. 67–74), an inquiry is made by the Chief Execution Officer into a debtor's financial position, in order to ascertain his ability to comply with the judgment; thereafter the debtor may be ordered to pay the debt in a lump sum or in installments, and upon his failure to do so within the period prescribed by the chief execution officer, he may be imprisoned for a period not exceeding 21 days, if no other means exist of compelling his compliance with the judgment. It is further provided that a debtor who has served the term of imprisonment ordered against him may not be imprisoned again in respect of the same debt or installment. In the case of a judgment for a debt deriving from maintenance for a wife, children, or parents, an imprisonment order may be issued without prior inquiry into the debtor's financial position.

[Menachem Elon]

The Israeli Supreme Court decision in the Perah case (HC 5304/92 Perah v. Minister of Justice, PD 47(4) 715), which relies on Jewish law regarding imprisonment for debt, changed the legal situation in the country and created a new legal reality [p. 1]. In that case the Perah Organization petitioned the Court to nullify Regulation 114 of the Execution Regulations, pursuant to which "the Chief Execution Officer may issue an arrest order … if by the date the order is issued the judgment debtor has not shown that there is another method of executing the judgment (p. 2)."

This regulation created a situation in which the Chief Execution Officer does not bear the burden of proof of demonstrating, in a judicial proceeding, that the debtor has the means to pay; instead, the debtor must prove that there is another means of enforcing the debt, and therefore there were no grounds for his imprisonment This legal position led to the issuance of imprisonment orders without the debtors being brought before the Chief Execution Officer, prior to, and as a condition for their imprisonment, and thousands of citizens being imprisoned because of debts, under inappropriate conditions and without consideration for their basic rights, even if only for short periods of time. In the Perah judgment, the Court cited (p. 1) its decision in the Rechtman case (CA 523/70 Rechtman v. Kork, PD 25(2) 542) in which, shortly after the law had been enacted, the Court expressed its doubts as to the legality of said regulation.

In the Perah decision, Justice Elon set out the entire perspective of Jewish law regarding this issue and the developments that have occurred in that context (see above). Justice Elon described the legislative process leading to the Knesset's enactment of legislation on this matter, and showed how the members of the Knesset who supported the imposition of imprisonment for debt based themselves on the approach of Jewish law. Accordingly, they stressed the difference between imprisonment as punishment for non-payment and imprisonment imposed after an in-depth clarification conducted by a judge regarding the debtor's economic ability. Justice Elon's conclusion was that imprisonment for non-payment of debt in Jewish Law was intended for the debtor financially capable of paying but who evades payment and hides his assets, thereby frustrating the creditor's attempt to collect his debt. It is only in this situation that imprisonment for debt is permissible under Jewish law, as in such cases it is not imposed as a punishment, but rather as a means of inducing the debtor to pay the debt. The justification for accepting the position of Jewish law in accordance with these developments derives from the same factors that engendered the developments themselves: the existence of swindlers who hide their assets in order to avoid paying a debt, and the need to avoid "locking the door" upon borrowers, i.e., to insure the survival of the institution of credit that borrowers require. Indeed, as stated above, as finally enacted the law allows for imprisonment for debt, while establishing "clear boundaries to guarantee that under no circumstances will imprisonment be used against an impoverished debtor who is unable to pay the debt, and it will only be imposed on a debtor who is financially solvent and hides his assets – i.e., as a means of compelling him to disclose his property for the purpose of paying the debt …" (Perah at 314).

In view of the above, the Court invalidated Regulation 114 of the Execution Regulations.

Justice Elon further added that the said regulation should also be invalidated pursuant to the provisions of Basic Law: Human Dignity and Liberty, which establishes the values of the State of Israel as a Jewish and democratic state. The values of a Jewish state are those reflected in Jewish law, as expressed above and as described at length in the Perah decision. These values have become the values of the democratic state, and over the course of recent generations all Western countries have either restricted imprisonment for debt to very limited circumstances, similar to those stipulated in Jewish law, or have entirely eliminated the possibility of such imprisonment.

It should be noted that today, following another amendment in the Execution Law (in 1994), debtors may still be imprisoned under section 70 of the Law, when found in contempt of the Execution Office. (See entry *Contempt of Court). Such imprisonment is not a penalty for the debt, but rather an incentive to comply with orders given by the Chief Execution Officer. Section 70 empowers the Chief Execution Officer to issue an imprisonment order against a debtor who fails to comply with these orders, e.g., the debtor's non-compliance with an order of payment that spreads the debtor's payments over a long period of time, or the debtor's refusal to sign a waiver of confidentiality designed to enable the Chief Execution Officer to ascertain the debtor's true financial position.

An additional amendment to the law, adopted in 1999, provides that a debtor may automatically be regarded as being a financially solvent debt evader if he fails to attend an investigation of his financial capacity. Here, too, the debtor may be imprisoned. But the law further provides (section 7 (b)) that a condition for the authority to imprison a debtor pursuant to the above provisions, is that there was complete and proper service of the execution office orders to the debtor. Accordingly, a debtor can only be imprisoned for failure to comply with an order if it was clearly delivered to the debtor's hands. Thus, according to these provisions, a debtor can only be imprisoned when it has been proven that he is avoiding a payment that he has the financial ability to make.

[Menachem Elon (2nd ed.)]

BIBLIOGRAPHY:

P. Dickstein, in: Ha-Mishpat ha-Ivri, 1 (1917/18), 29–76; B. Cohen, in: Louis Ginzberg Jubilee Volume (1945), 113–32, republished in his Jewish and Roman Law (1966), 159–78; ibid., 772–5. ADD. BIBLIOGRAPHY: M. Elon, Ḥerut ha-Perat be-Darkhei Geviyyat Ḥov… (1964), 111–237, 255–69; idem, ILR, 3 (1968), 107–19; 4 (1969), 111–3; idem, Kevod ha-Adam ve-Ḥeruto be-Darkhei ha-Hotza'ah la-Poal (2000), 111–237, 255–69, 275–369; idem., Ha-Mishpat ha-Ivri (1988), I:483, 535f., 575f., 653, 1285; 3:1370f.; idem, Jewish Law (1994), 2:588f., 651, 708f. 808, 1014; 3:1534; 4:1635f.; idem, Jewish Law (Cases and Materials) (1999), 200ff.; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 1:103; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefatve-Italyah (legal digest) (1997), 66.


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