EXECUTION (Civil), laws concerning methods of recovering a debt.
Definition and Substance of the Concept
In Jewish law, a debt or obligation (ḥiyyuv) creates in favor of the creditor not only a personal right of action against the debtor, but also a right in rem in the form of a lien over the latter's property (termed aḥarayut nekhasim; see *Lien; Law of *Obligation). Hence, many of the laws concerning the methods of satisfying a debt out of the debtor's property also apply to the recovery of a debt with the consent of the debtor, and not merely to recovery of a debt by court action; e.g., such matters as the distinction between the different categories of assets out of which the debt must be satisfied, the distinction between free and "encumbered and alienated assets" (nekhasim benei ḥorin and meshu'badim, respectively), or the matter of preferential rights as between several creditors, etc.
Recovery of debt will here be dealt with from two main aspects: (1) methods of recovery involving the exercise of constraint against the person or liberty of the debtor; and (2) methods of recovery from the debtor's assets.
Execution in Jewish Law and in Other Legal Systems – Fundamental Principles
There are detailed instructions under biblical law governing the relationship between the lender (creditor) and borrower (debtor; Ex. 22:24–26; Deut. 24:6; 10–13), the essence of which is to enjoin the creditor not to prejudice the debtor's basic necessities of life or his personal honor and freedom. This is in contrast to the right given the creditor in the laws of Hammurapi to enslave the debtor as well as the debtor's wife, children, and slaves (secs. 114–6, 151–2, also 117–9) and in further contrast with similar provisions in the laws of Assyria, Ashnunna, Sumer, etc. (see Elon, Ḥerut ha-Perat 3–8). In biblical law the institution of slavery is limited to two cases only: (1) the thief who does not have the means to make restitution and is "sold for his theft" (Ex. 22:2); and (2) the person who voluntarily "sells himself" because of his extreme poverty (Lev. 25:39). Scriptural references indicate, however, that in practice bondage for debt was customary at times (II Kings 4:1; Isa. 50:1 and see I Sam. 22:2) – presumably under the influence of the surrounding legal systems; but the practice was strongly criticized by the prophets (Amos 2:6; 8:4–6; Micah 2:1–2) and after Nehemiah's sharp condemnation of the "nobles and rulers" for indulging in this practice (Neh. 5:1–13) bondage for debt was abolished in practice as well as in theory. The Bible makes no mention of imprisonment for debt and, indeed, Jewish law has given only the most limited recognition to *imprisonment, even in the field of criminal law.
Accordingly, methods of execution in Jewish law were in direct contradistinction to execution procedures under the Roman Twelve Tables. By the legis actio per manus iniectionem, the creditor was entitled – on the expiration of the 30 days' grace given the debtor to repay his debt and a further 60 days within which someone could redeem him from imprisonment and pay the debt on his behalf – to put the debtor to death or to sell him "trans tiberim"; if there were several creditors, each was entitled to a share of the debtor's corpse. The underlying motive of execution in Roman law was not only to satisfy the creditor's legitimate and material claim, but also to extract vengeance and to punish the debtor for not fulfilling his obligation (see H.F. Jolowicz, Historical Introduction to the Study of Roman Law (19522), 192; Elon, Ḥerut ha-Perat 11f.). In the course of time the harshness of these provisions were modified and the creditor's right to sell or to put the debtor to death was abolished by the Lex Poetelia in 313 (326?) B.C.E., but it still remained possible to imprison the debtor until he repaid the debt or made adequate compensation for it by his own labor (Elon, ibid.). The basic attitude toward the creditor-debtor relationship as laid down in biblical law, with the later further requirement that the debtor make repayment by the due date, has, throughout the ages, remained at the root of the rules of execution in Jewish law (see Yad, Malveh, chs. 1 and 2; Tur and Sh. Ar., ḤM 97–98), although certain changes and modifications were, at various times, introduced in keeping with the social and ethical realities prevailing in the different centers of Jewish life (see below).
Distinguishing between a Pauper and a Man of Means
The biblical passages mentioned above already delineated the basic concept of protecting the poor against the obduracy of their creditors. Talmudic scholars emphasized the distinction in unequivocal terms: "To the poor of your people you shall not be as a creditor, but to the rich" (Mekh., ed. Horowitz-Rabin, Mishpatim; 19, p. 316), and "You shall not be as a creditor to him – do not harass and demand from him when you know he has no means" (Mekh. SbY to 22:24; BM 75b and Codes). In post-talmudic times the distinction acquired a particular significance, especially in relation to imprisonment for debt.
Entry into the Debtor's Home
Entering the home of the debtor, in order to remove his assets in satisfaction of a debt, was prohibited in the Torah (Deut. 24:10–11). According to one opinion, entry for this purpose was forbidden to both the creditor and the debtor – so that the
The prohibition against entering the debtor's home hindered the effective recovery of a debt if the debtor pleaded that he had no assets and if no assets were found outside his home, since it was impossible to search his home so as to ascertain the truth of his plea. The post-talmudic scholars sought to overcome this difficulty in various ways. For example, Alfasi decided that entry is permissible if the debtor is "given to violent and evil ways and is arrogant" (i.e., in refusing to pay – quoted in Sefer ha-Terumot, 1:3), but Maimonides did not accept this view and regarded any permission to enter the debtor's home as against biblical law (Yad, Malveh, 2:2), and other scholars also rejected any permit of this nature (Sefer ha-Terumot, 1:3; Resp. Rashba, vol. 1, no. 909; vol. 2, no. 225). Some scholars sought to overcome the problem by giving a restricted interpretation to the biblical prohibition. Thus, for example, Meir ha-Levi *Abulafia argued that the officer of the court is only prohibited from entering the debtor's home when the debt can be recovered from other assets outside his home; if no such other assets are found and the creditor contends – even doubtfully – that the debtor has assets inside his home, the court officer may enter the latter's home and seek assets on which to levy execution (quoted in Tur, ḤM 97:26). Jacob b. Meir Tam and Asher b. Jehiel offered a solution based on the following reasoning: the biblical prohibition refers only to the case of the creditor attempting to take a pledge from the debtor's property as security for repayment of the loan at some time after the debt was created; but not to the case of the creditor seeking entry in order to collect payment of the debt, after the lapse of the due date (see also *Pledge). It follows therefore that entry into the debtor's home in the latter circumstances had never in fact been prohibited and was permissible (Sefer ha-Yashar, Nov. no. 602); Piskei ha-Rosh, BM 9:46–47), and this distinction was accepted by the majority of the posekim (Sh. Ar., ḤM 97:6,15 and standard commentaries); but such entry was nevertheless still restricted to the court officer (Tur, ḤM 97:26; Sh. Ar., ḤM 97:6,15; Keẓot ha-Ḥoshen, ḤM 97, n. 2; Elon, Ḥerut ha-Perat (60, n. 35)). When it is clear that the debtor is impoverished and has no property, entry into his home is prohibited since "this can only cause him shame and suffering" (Sma, ḤM 99–13).
The possibility of compelling satisfaction of a debt by means of the debtor's own labor was recognized in various legal systems during the Middle Ages. This form of compulsion represented a temporizing with the institution of enslavement for debt – all the recognized characteristics of this sometimes being manifest, while at other times and places the debtor was merely required to cover the principal and interest of the debt with his own labor (see Elon, Ḥerut ha-Perat 68ff.).
There was in Jewish law no trace of this kind of compulsion until the 11th century (except for the contents of one of the aggadot concerning the destruction of the Temple: Git. 58a). From this time onward, however, the question was discussed in the light of the surrounding legal realities and the need for more efficient methods of debt collection. On the one hand, the halakhic scholars regarded compulsory labor as prejudicial to the debtor's personal liberty – particularly in view of the general attitude of Jewish law toward any kind of labor – hire as a restraint on personal freedom, for which reason it has afforded the laborer special privileges, such as the right of retracing, etc. (BM 10a, 77a; see also *Labor Law). On the other hand, compulsory labor involved no actual deprivation of the debtor's liberty – such as resulted from a sale into slavery – if its object was merely to give the creditor due satisfaction for his debt. Alfasi, and other scholars following him, decided that the debtor should labor – hire himself in order to repay his debt (quoted in Resp. Maharam of Rothenburg, ed. Cremona, no. 146). Some scholars distinguished between different kinds of obligations, and thus, for example, it was decided that in the case of a debt arising from the debtor's obligation to maintain his wife, he could be compelled to work in order to maintain her, since he expressly undertook to do so in the ketubbah – a factor not present in any other obligation and thus precluding compulsory labor (Elijah of Paris, Tos., Ket. 63a). Other scholars were of the opinion that compulsory labor was precluded in all cases, including even that of a wife's maintenance (Jacob *Tam quoted in Haggahot Maimoniyyot; Yad, Ishut, 12: s.s. 8), and this view was accepted by the majority of the posekim (Rosh, Resp. no. 78:2; Tur, EH, 70; Tur, ḤM 97:28–30; 99:18–19; Sh. Ar., EH 70:3; 154:3; HM 97:15), although some of the latter did recognize the exception in respect of a wife's maintenance (Rema, EH 70:3; Ḥelkat Meḥokek, Beit Shemu'el
Imprisonment for Debt
In talmudic times and for a long time afterward, Jewish law completely excluded the possibility of imprisonment for debt. In the course of time, however, and because of the surrounding legal realities as well as internal social and economic changes, the question of imprisonment for debt came to the surface in Jewish law, and a number of basic halakhic rules were laid down on this subject. For greater detail see *Imprisonment for Debt.
Execution procedure in Jewish law is based upon talmudic and post-talmudic sources and may be briefly summarized as follows: when it is sought to execute a judgment of the court ("if the borrower fails to give of his own accord, payment is levied through the court": Yad, Malveh 18:1), the court will grant a stay of execution – if so requested by the debtor in order to give him the chance of raising money to repay the debt – for a period of 30 days; during this period the debtor is not obliged to provide any pledge or surety, unless the court sees grounds for suspecting that he will place his assets beyond reach or in some other manner evade payment of the debt (Sh. Ar., ḤM 100:1; Resp. Maharik, sec. 14); the period of the stay may be increased or reduced by the court, depending on the circumstances (Tur ḤM 100:1; Rema ḤM 100:1), but no stay will be granted in respect of certain debts arising from tort (Yad, Ḥovel u-Mazzik, 2:20; see also Sh. Ar., ḤM 420:27; for further details concerning the stay, see Arukh ha-Shulḥan, ḤM 100:2). No stay of execution will be granted when an appeal is lodged against the judgment, unless so warranted by special circumstances (Rema ḤM 14:4; Bah ḤM 14:4; see also Takkanot ha-Diyyun be-Vattei ha-Din ha-Rabbaniyyim be-Yisrael, 5720 – 1959/60, Rule 132, and *Taxation). The creditor may also demand that the court impose a general ban on anyone who has money or chattels and refuses, without reasonable cause, to repay a debt (Yad, Malveh, 22:1; Sh. Ar., ḤM 100:1). Upon the debtor's failure to repay within the period of the stay, the court will issue a writ of adrakhta (see below, Yad, ibid.; ḤM 100:3), which is followed by various other procedural steps until the actual sale of the debtor's property or the creditor's "going down" to the property (horadat ba'al ḥov la-nekhasim), in satisfaction of the debt. If a stay of execution is not sought by the debtor and he declares that he will not pay the debt, the writ of adrakhta is issued forthwith (BK 112b; Yad and Sh. Ar., ibid.). If the debtor is found to have no property he is "warned" by the court three times – on a consecutive Monday, Thursday, and Monday – and then the lesser ban (*niddui) is pronounced against him until he pays the debt or pleads that he has no means of doing so and delivers a solemn oath accordingly (the oath of ein li; see below). If he suffers the ban for 30 days without seeking its retraction, it will be extended for a further 30 days and thereafter the full ban (*ḥerem, "excommunication") is pronounced against him (ḤM, ibid.).
Adrakhta and Tirpa
The word adrakhta means "to pursue and overtake" (cf. Judg. 20:43; Ket. 60b), hence it is the term used for a document empowering a creditor to "pursue" his debtor's property and levy payment thereon, wherever found (Rashi to BM 16b and 35b). Other scholars gave the term the meaning of the word dorekh ("treading upon"), i.e., by virtue of the writ of adrakhta, the creditor becomes master over and "treads upon" the debtor's property for the purpose of recovering the debt therefrom (Rashbam to BB 169a and see Yad Ramah, ibid.). The writ is issued for the recovery payment out of both the free prospect, and the "encumbered and alienated" property (nekhasim benei ḥorin and meshu'badim; see *lien). The adrakhta in respect of free property is written as follows: "X was adjudged to be indebted to Y in such and such an amount and, he not having paid voluntarily, we have written out this adrakhta on such and such a field of his." Thereupon the bond of indebtedness is torn up, and according to one opinion, this fact must be stated in the writ of adrakhta to prevent any possibility of the creditor recovering a second time on the same bond (Yad, Malveh, 22:13; Sh. Ar., ḤM 98:9–10; Meiri, in: Shitah Mekubbezet BK111b).
If the debtor has no free property, the adrakhta on the "encumbered and alienated" property is written thus: "X was adjudged to be indebted to Y in such and such an amount by virtue of a bond in the latter's hands; since he has not paid the debt and whereas we have not found any free property of his and have already torn up Y's bond, we therefore give Y the power to investigate and seek out and lay hands on all the property of X that he can find, including all the lands sold by X from such and such a time on, and Y is hereby authorized to recover the debt and levy payment on all such property" (Yad, Malveh, 22:6; Sh. Ar., ḤM 98:9; for the adrakhta version as to orphans' property, see Yad, Malveh, 12:9; ḤM 109:2). If the creditor finds any encumbered property which he is entitled to seize for the purpose of recovering payment, he will do so and thereupon the adrakhta is torn up (for the same reasons as the bond is torn up) and a writ of tirpa ("tearing apart," seizure) is issued (in which the tearing up of the adrakhta is recited: for the text see Yad, Malveh, 22:8; Sh. Ar., HM 98:9; for a different order of procedure concerning the adrakhta and tirpa, see commentaries to BK and BB, ibid.). A creditor executing a tirpa against encumbered property is required to take a solemn oath that he has not yet recovered payment of the debt, nor granted a release from or sold his claim (Shevu. 45a; Yad, Malveh, 22:10; ḤM 114:4).
Appraisement and Related Procedures
After the creditor finds free property of the debtor and also in the case of recovering payment from encumbered property, following upon a writ of tirpa, an appraisement (shuma) of the
After the appraisement has been approved by the court, there is a public announcement or advertisement (hakhrazah) in which the judges announce: "whoever wishes to buy may come and do so," in order to find the highest bidder. In origin, the law of hakhrazah applied in respect of consecrated property and the property of *orphans (Ar. 2lb and Codes), but was extended also to property sold in execution (Ket. 100b; Tos. to Ar. 2lb and Codes). The scholars disputed the question whether the sale of orphans' property should be so advertised for 30 or 60 days and the halakhah was decided that the period should be 30 days where the announcement is made daily and 60 days where it is made on Mondays and Thursdays only (Ar. 2lb and Codes.). According to some of the posekim, an announcement for 30 days is made even in matters not concerned with orphans' property (Rema ḤM 103:1), but another opinion is that in the case of recovering payment out of free property, an announcement is made "as may be deemed necessary, until there are no higher bids" (ibid.).
The announcement is made in the morning and evening, when the "workmen set out and return home," and is only made for the sale of land, not for the sale of chattels, nor, if the sale is for urgent purposes, such as maintenance, funeral expenses, or polltax (Ket. 100b and Codes). The property is sold to the person paying the highest price beyond the appraised value or – if there be no one to raise the price – to the person paying the appraised value. The purchaser is given a shetar hakhrazah or iggeret bikkoret ("letter of examination," Ket. 99b and see Rashi ad loc.; cf. also Tosefot Yom Tov, Ket. 11:5; for the text see Sefer ha-Terumot, 3:2; Beit Yosef ḤM 103:17; cf. also other interpretations in A rukh ha-Shalem, S.V. iggeret bikkoret). The creditor is given a preferential right of acquiring the property for himself if no one offers more than the appraised value or if he equals any other offers (Sh. Ar., ḤM 103:1). In this event the creditor is given a shetar horadah (i.e., he "goes down" to the property, it is "appraised" to him; for the text see Tur ḤM 103:17 where it is called a shetar shuma; cf. BM 16b, where it is called a shetar ahaletata Yad, Malveh, 22:10–11) where it is also called a shetar horadah but a different version of the text is given; see also the standard commentaries and Gulak, ibid.).
One opinion is that once the adrakhta has reached the hands of the creditor, he may also enjoy the fruits of the property, but another opinion is that he may do so only after the appraisement and the announcement (BM 35b) – the halakhah was decided in accordance with the latter view (Malveh, 22:12). The execution proceedings are completed when the property is sold and the proceeds paid to the creditor or the property itself transferred to him.
Restoration of Property Transferred to the Creditor
In strict law the creditor to whom the debtor's land is transferred is not thereafter obliged to return the land if the debtor subsequently acquired the means to repay the debt in cash; but the scholars enacted, in a takkanah referred to in the Talmud as shuma hadar (BM 16b and Codes; cf. Gulak, Ha-Hiyyuv ve-Shi'budav, 125, on the use of the term shuma in this connection), that this should be done for the sake of "Do what is right and good in the sight of the Lord" (Deut. 6:18 and see *Takkanot). Chattels recovered by the creditor, however, are not returnable to the debtor (Rema ḤM 103:9). According to one view, land is returnable to the debtor if he repays the debt within 12 months but the halakhah was decided according to the view that land is always returnable to the debtor (i.e., upon repayment of the debt, BM 16b. and 35a, Codes). Land recovered by the creditor and then sold by him, or given in gift, or inherited upon his death, is however not returnable to the debtor (ibid.). According to some scholars, the land must always be returned to a debtor, even if given by him voluntarily in satisfaction of the debt and not as a result of execution proceedings; but other scholars hold that his voluntary surrender of the land is a bar to its ever being returned to him against payment of the debt (ibid.). Similarly, a stipulation between the creditor and debtor and effected by way of a formal kinyan (see *Acquisition, Modes of), to the effect that the former shall not be obliged to return the land to the latter, holds good even when the land is turned over to the creditor as a result of execution proceedings (Sh. Ar., ḤM 103:9).
Categories of Assets for Recovery of Debt
If the debtor owns cash (coins), chattels, and land, he must pay in cash and cannot refer the creditor to other property (Sh. Ar., ḤM 101:1); if the debtor wishes to pay in cash but the creditor wants land or chattels, some scholars give the creditor the right to choose, but the halakhah was decided according to the view that the choice is the debtor's (Tur and Sh. Ar., ḤM 101:3). If the debtor owns land only, the creditor may refuse to accept it and choose to wait until the debtor is able to pay him in cash (ḤM 101:4). If the debtor has chattels and land but no cash, the creditor recovers payment out of the chattels, but the debtor has the right to choose the chattels for this purpose (ḤM 101:2); the creditor cannot demand land if the debtor offers chattels in payment.
If the debtor has no chattels or such chattels do not satisfy the debt, payment is extracted from his land (Malveh 22:4 and ḤM 101:10) and – when such land consists of fields of different quality – in this order: a debt arising from tort is satisfied
In many places it was customarily stipulated in bond agreements that the debtor had to pay the debt in cash, without putting the creditor to the trouble of execution proceedings and for this purpose the debtor was obliged personally to deal with the sale of his property and to pay the creditor in cash (Resp. Rashba, quoted in Beit Yosef ḤM 101:5).
"Arrangement" for the Benefit of Impoverished Debtors
(siddur le-ba'al ḥov). The Pentateuch lays down various provisions concerning the taking of a pledge from a borrower and the duty to restore it in case the borrower is impoverished and requires the pledge for the elementary necessities of life. The scholars have interpreted these laws as applying to the taking of a pledge other than at the time of the loan and for purposes of securing the loan, but not when it is taken in satisfaction of the loan (see *Pledge). The scholars laid down that when the creditor seeks to levy on the debtor's property – i.e., after due date of payment and in satisfaction of the debt – certain property serving the debtor's elementary needs is to be entirely beyond the reach of the levy. This exclusion of a part of the debtor's property from the creditor's grasp is termed mesaredin le-va'al ḥov; i.e., an assessment is made of how much to leave the debtor for his vital necessities (Rashi, BM 113b), or an "arrangement" is made for his necessities, as laid down by the scholars (Rashi to Ned. 65b); the version of some scholars is mesaredin le-va'al ḥov, from the word שָׂרִיד = a remnant, i.e., leaving the debtor a shred or remnant (Rashi, 113b).
The basic idea of an "arrangement" is found in a baraita which lays down that a creditor may demand that an expensive suit of clothing belonging to the debtor be sold in satisfaction of the debt, but the latter must be left with some other ordinary clothing. In the opinion of R. Ishmael and R. Akiva, "all Israelites are entitled to the same robe," and even an expensive suit must be left to the debtor (BM 113b). However, the detailed laws of "arrangement" laid down by Judah ha-Nasi in the Mishnah (Ar. 6:3), relate only to *arakhin obligations (to the Temple) and not ordinary debts and only in the baraita cited is mention made of "arrangement" in relation to all debts (BM 113b). According to some of the amoraim, no "arrangement" of this nature is ever made (BM 114a) and this view is followed by some of the posekim (Sefer ha-Yashar, Nov. no. 602), but the majority of the posekim confirm the institution (Yad, Malveh, 1:7; 2:1–2; Sh. Ar., ḤM 97:6ff, 23). There is also an opinion that "arrangement" is only made in the case of a debt originating from loan (and not, for example, from hire; ḤM 97:29; Arukh ha-Shulḥan 97:35).
Within the framework of the arrangement the debtor is left with the following: food for a period of 30 days – according to the normal requirements of the average townsman, even though the debtor may have lived as a pauper; clothing for a period of 12 months ("he does not require to wear silken apparel or a head-covering of gold – these shall be taken from him and he shall be given what is due to him"; see above); a bed and other requirements for sleeping; essential home furniture, such as a table and chair (Arukh ha-Shulḥan 97:26); his shoes; an artisan is left with two of each kind of tool used by him (Yad, Malveh 1:7 and ḤM 97:23); according to R. Eliezer a farmer is left with a pair of working animals, and the owner of an ass or a boat is left with the ass or boat respectively, but the majority opinion of the scholars, according to which the halakhah was decided, is that these are regular assets and not artisans' utensils (Ar. 23b; and Codes). The debtor retains his *tefillin but not his books (ibid.), but some scholars say that if the debtor is a talmid ḥakham, his books are not taken from him (the opinion of Judah Barzillai, quoted in Sefer ha-Terumot 1:1,8). An interesting innovation is the decision of Moses *Sofer (at the beginning of 19th century) that a shopkeeper's stock of goods is not to be sold in execution, "since in these times the essence of their livelihood is to buy and sell on credit, it would amount to taking their lives in pledge (Deut. 24:6) if their stock is taken from their shops; therefore the practice is to take payment in installments at fixed times … so that the shopkeeper shall not fail completely" (Nov. Hatam Sofer ḤM 97).
The laws of the "arrangement" are not concerned with the needs of the debtor's wife and children, even though they are the debtor's responsibility (Ar. 6:3f., and Codes). Hai Gaon held the view, however, that the debtor's needs for his household and children, for whose maintenance he is responsible, come within the arrangement – and this was the practice in Kairouan (see Elon, Ḥerut ha-Perat 47, n. 43). The creditor does not, however – but for an entirely different reason – levy payment on the clothing of the debtor's wife and children, even if it was bought by the debtor with his own money. In the opinion of some of the posekim, this includes their Sabbath and festival garments, even if they are very expensive. The reason is that it is presumed that such garments are given by the debtor to his wife and children with the intention that the garments become their own property and the law precludes the creditor from levying payment on chattels that have passed out of the debtor's ownership (Yad, Malveh, 1:5; ḤM 97:25,26 and Isserles ad loc; and see *Lien). Some scholars hold, on the strength of this view, that a wife's jewelry given to her by her husband, the debtor, is also excluded from the creditor's levy (and see Sma, ḤM 97 n. 62). Garments or jewelry owned by the debtor's wife prior to their marriage or acquired thereafter
Plurality of Creditors – Preferential Rights
In the case of a written obligation (shetar or deed), the creditor in whose favor the obligation was first established takes preference in levying payment on the debtor's land, whether still in the latter's possession (i.e., the free property) or whether already acquired from the debtor by a third party (i.e., "encumbered and alienated" property; Ket. 94a; Yad, Malveh, 20:1; Sh. Ar., ḤM 104:1). This preferential right upon recovery of a debt is the result of an attitude of Jewish law which gives the creditor, upon the creation of the debt and over and above his personal right of recourse against the debtor, a lien on the latter's land. This lien, which is in the nature of a right, takes precedence over any similar right acquired by a subsequent creditor. If a later creditor forestalls an earlier one in levying on the debtor's land, some scholars hold that what he succeeds in recovering cannot be taken from him by an earlier creditor despite the right of a creditor by deed to seize a debtor's "encumbered and alienated" assets – since a later creditor still takes precedence over a regular purchaser, so that "the door shall not be bolted before a borrower" (Ket. 94a and Tos. to ibid.). Other scholars (ibid), followed by the majority of the posekim (Alfasi and Asheri to Ket. 94a; and Codes), hold that in these circumstances the levy of the later creditor is not valid and the earlier creditor may seize from the later one whatever the later may have recovered. However, if the later creditor forestalls the earlier one and levies on the beinonit land, but leaves the debtor with zibburit, the levy will be valid since the earlier creditor is still able to recover his debt from the zibburit (Sh. Ar., ḤM 104:1).
So far as the debtor's chattels are concerned, the earlier creditor takes no precedence in recovering his debt from such chattels, since there is no lien over movable property. In the case of two creditors simultaneously claiming the debtor's chattels, some scholars hold that the earlier creditor takes precedence but the majority opinion of the posekim is that there is no preferential right and the debtor's assets are shared between the two creditors (see below; Ket. 94a; and Codes). Even in respect of land there is no preferential right unless the land was in the debtor's possession prior to establishment of the debt; and if the debtor, at the time the debt was established, charges in favor of two or more creditors any land which he may acquire in the future (see *Lien), the earlier creditor will have no preferential right in respect of such land, since when the debtor acquires the land it is automatically charged in favor of both creditors (BB 157b; and Codes).
In the case of a mere oral obligation there is no preferential right between creditors, neither over land nor chattels, and two creditors seeking to levy payment at the same time must share the debtor's property (Rif. Resp. no. 197; see also Sma to Sh. Ar., ḤM 104 no. 3 and 31). According to some scholars, however, there is an order of preference in respect of land in the debtor's possession (ḤM 104:13 and Sma), even in the case of oral debt.
The posekim dispute the method of dividing the debtor's property amongst his creditors when there is no preferential right. One opinion is that each creditor takes a share of the property in proportion to the size of his debt, since it would be inequitable to divide the property equally in proportion to the number of creditors (Rabennu Hananel, in Tur ḤM 104:11; Yad, Malveh 20:4 quoting the Geonim); whereas others hold that the debtor's property is shared equally amongst the creditors according to their number, provided that no creditor receives more than the due amount of his debt, since the small creditor is thereby afforded greater protection (Ket. 94a; Alfasi and Rashi ad loc.; and Codes).
Preferential Rights and Insolvency
A consequence of the law of preference as described above is that Jewish law does not recognize some of the laws of insolvency customary in other legal systems. Thus, it does not recognize a concurrence with regard to division of an insolvent estate, whereby all the debtor's assets – save for those specifically charged in favor of a particular creditor or creditors – are divided among his creditors on a concurrent basis in proportion to the size of each creditor's claim. Because of the lien over the debtor's land afforded in Jewish law to each of the creditors, the order of precedence in recovering a debt follows the order of the establishment of the various liens, in similar manner to the order of preference in other legal systems regarding specifically charged assets. Even in cases where there is no prescribed order of preference, for example, in respect of the debtor's chattels or land acquired by him after the establishment of the debt, the assets are distributed amongst the creditors in proportion to the number of creditors and not to the size of each claim.
In post-talmudic times the law was supplemented, within the above-mentioned framework, by a number of rules very similar to the familiar insolvency laws. Some of these rules were aimed at protecting all the creditors. Thus, for example, it was laid down that in cases where the law afforded no preferential right, a proportional share of the debtor's estate had to be reserved for those creditors who had not yet claimed repayment and even for those creditors holding claims that were not yet due for payment. (Teshuvot Maimoniyyot, Mishp. no. 41; Rashba, Resp. vol. 1, no. 1111; Keẓot ha-Ḥoshen ḤM 104, s.s. 2). It also became customary to announce in public that anyone failing to lodge his claim against a particular insolvent within a specified period would lose his right (Rashba, Resp. vol. 1, no. 893).
In different periods, when economic crises led to an increase in cases of insolvency, various takkanot were enacted to deal with the situation (see Elon, Ḥerut ha-Perat 172ff.). These provided for the appointment of a trustee (ne'eman) over the property of an insolvent (a bore'aḥ or "fugitive" as he is called in the halakhic literature and takkanot of Poland, Germany, and Lithuania in the 17th and 18th centuries: see Elon, Ḥerut ha-Perat
Execution in the Absence of the Debtor
The scholars of the Talmud express conflicting opinions on the question of levying payment on the debtor's property when he is absent and there is no reasonable prospect of reaching him. One opinion is that in these circumstances, payment is not levied, even if the creditor should take an oath that the debt has not yet been paid; another opinion is that a debt is not recovered in the debtor's absence except with regard to a debt on which interest is payable; third opinion is that payment is not levied unless the debtor had faced trial and thereafter taken flight; a further view is that payment is levied in the debtor's absence and the possibility that he may have paid the debt and received a release from his bond is disregarded, in order that "a person shall not take his neighbor's money and then go and sit abroad, which would cause the door to be bolted before borrowers" (Ket. 88a, TJ, Ket. 9:9,33b, 8). Some of the posekim follow the third of these opinions (Hai Gaon, quoted in Sefer ha-Terumot, 15:1; Rabbenu Hananel, quoted by Alfasi, Asheri, and in Tos. to Ket. 88a); the majority of the posekim, however, hold the opinion that payment is levied in the debtor's absence, on both his land and chattels, after the creditor has presented his bond of indebtedness and taken an oath that the debt had not yet been paid (Alfasi and Asheri, Ket. 88a; Yad, Malveh, 13:1; Sh. Ar., ḤM 106:1). In the event that the debtor goes abroad before the debt falls due for payment, some scholars hold that by virtue of the presumption that no person pays a debt before its due date, the creditor may levy payment without taking the oath of non-payment – even though the debt may meanwhile have fallen due – since the fact that the creditor holds the bond of indebtedness obviates the fear that the debtor may meanwhile have paid the debt through an agent. Other scholars hold that in these circumstances the creditor is required to take the prescribed oath just because of the fear that the debtor may have paid the debt through an agent (Sefer ah-Terumot, 15:1; Tur, ḤM 106:3).
At no time is payment levied in the debtor's absence, unless the latter cannot be reached by an agent in a return journey lasting not more than 30 days (some scholars fix a longer and others a shorter period); if the debtor is somewhere where he can be reached in less than the stated period, the court will dispatch an agent to notify the debtor of the proposed levy on his assets. The expenses involved are paid by the creditor, but these may be recovered in turn from the debtor (Yad, Malveh, 13:1 and ḤM 106:1); expenses incurred by the creditor for his own benefit, such as those connected with the issue of a writ of adrakhta, etc. are not recoverable from the debtor (Sma n. 2 and Siftei Kohen ḤM 106). Execution in the debtor's absence is conditional upon the prior fulfillment of three requirements by the creditor: (1) probate of the bond of indebtedness held by him; (2) proof that the debtor is abroad and is not available to face trial; and (3) proof that the assets on which it is sought to levy payment belong to the debtor (Malveh 13:2; ḤM 106:2). In order to obviate the difficulties attending an execution in the debtor's absence, the creditor may request the court to restrain the debtor from leaving the country unless he provides a surety for the payment of the debt (Sh. Ar., ḤM 73:10; see also Elon, Ḥerut ha-Perat 218, n. 409; PDR 2:65ff.).
Impoverished Debtors and the Plea of Ein li
"It is the law of the Torah that when the lender comes to recover payment of the debt, and it is found that the borrower has property, then an assessment ["arrangement"] for his vital needs is made and the remainder is given to his creditor …; if it is found that the debtor has no property, or that he only has objects which fall within the assessment – the debtor is allowed to go his way (and he is not imprisoned, neither is he asked to produce evidence that he is a pauper, nor is an oath taken from him in the manner that an idolator is adjudged, as it is written: 'you shall not be as a creditor unto him.'" (Yad, Malveh, 2:1). This was the law as it prevailed until geonic times. The advent of the geonic period was accompanied by material changes in the economic life of Babylonian Jewry. Commerce, extending to the North African and other countries, came increasingly to replace agriculture and the crafts as the mainstay of Jewish existence. Whereas formerly loans were taken primarily for the borrower's daily needs, they now came to be employed mainly for profit-making purposes, and the growing capital flow and development of external trade made it difficult to keep a check on the assets of a debtor, all of which encouraged the phenomenon of concealing assets. In the course of time this led to the adoption of far-reaching changes in the means of recovering a debt (see above; and also Imprisonment for *Debt.). These changes only partially asserted themselves in the geonic period, but two developments from this period may be mentioned, both aimed at a more effective process of debt recovery from a debtor pleading a lack of means.
One development was to place the debtor under a strict ban for a predetermined period, as a means of compelling payment. Thus it was decided by Hai Gaon, the first to mention this practice, that because of the adoption of various subterfuges by people of means seeking to evade payment of their debts – including those falsely swearing to their lack of means – any debtor pleading a lack of means to pay a debt shall have the ban imposed on him for a period of 90 days, during which time he is "severed" from Israel – so as to induce the disclosure of his assets and payment of the debt. Upon the expiry of this period he is made to take an oath that he has no means (for the terms of the oath, see below). Only a debtor who is reputed to be a pauper and known as such by the people is exempt from the ban when pleading no means of paying his debt (see A. Harkavy, Zikkaron la-Rishonim, no. 182). The ban for 90 days is also mentioned in the Talmud (BK
A second development in the geonic period toward more efficient debt collection was a takkanah providing for the administration of the oath of ein li ("I have no means") or shevu'at ha-ḥashad (oath taken when "suspected" of having means) to a debtor pleading a lack of means to repay his debt: "After the redaction of the Gemara, when the early geonim saw the swindlers increase in number and the door bolted before a borrower, they regulated that a solemn oath – having the stringency of biblical law – be taken from a borrower to the effect that he has nothing beyond the assessment that is made for him and that he has not concealed anything with others and has given no returnable gifts; the oath shall include that whatever he may earn or that may come into his hand or possession, in any manner whatever, shall not be used at all to feed or clothe either his wife or children or be given to anyone as a gift, save that he shall take from it sustenance for 30 days and raiment for 12 months – such as is due to him; neither the sustenance of gluttons nor of the nobility nor the raiment of high officials, but such as he has accustomed to – and the remainder he shall give to his creditors, in due order of preference, until the whole of his debt is collected" (Yad, Malveh, 2:2). Unlike the case of the ban imposed for 90 days, the pauper was also subjected to this oath, but was later exempted from it by Maimonides, on the grounds that the oath was designed "to deal with swindlers and not with those generally accepted to be paupers" (Yad, Malveh, 2:4). The administration of this oath, as qualified by Maimonides, was accepted by the posekim (Tur and Sh. Ar., ḤM 99:4).
A similar oath can be traced in the legal systems of various European countries, commencing from the 12th century onward; thus for example, in the Offenbarungseid of German and Austrian law, the debtor is also committed to make over all his future earnings to his creditor (see Elon, Ḥerut ha-Perat 49, n. 52).
The underlying purport of the Jewish laws of execution is to ensure the existence of an effective debt-collection procedure, so as not to "bolt the door before a borrower," while maintaining adequate safeguards against the violation of a debtor's personal freedom and dignity. The pursuit of this twofold objective has ensured that the laws of execution at all times recognize a material distinction between a genuinely impoverished debtor and a debtor of means seeking to evade fulfillment of his obligations towards the creditor, a distinction lucidly enunciated in the statements of Maimonides already cited.
M. Bloch, Die Civilprocess-Ordnung nach mosaiich-rabbinischen Rechte (1882), 90–106; Gulak, Yesodei, 107–9; 4 (1922), 184–96; Gulak, Oẓar, 314–36; idem, Toledot ha-Mishpat be-Yisrael bi-Tekufat ha-Talmud, I (1939) (Ha-Hiyyuv ve-Shi'budav), 118–40; Herzog, Instit 1 (1936) 4f; 386; S.J. Zevin, in: Sinai, 3 (1938),55–71, 246; ET, 5 (1953), 92–132; 9 (1959), 143–55; B. Cohen, in: Louis Ginsberg Jubilee Volume (1945), 113–32, republished in his Jewish and Roman Law (1966), 159–78; addenda ibid. 772–75. ADD. BIBLIOGRAPHY: M. Elon, Kevod ha-Adam ve-Ḥeruto be-Darkei ha-Hoẓa'ah la-Po'al (2000), idem, Ha-Mishpat ha-Ivri (1988), I:105, 194, 486, 515, 535, 601, 633; 2:885, 1284f; 3:1319, 1370f; idem, Jewish Law (1994), 1:117, 218; 2:591, 627, 651f, 744, 784; 3:1079, 1533f., 1576, 1635; ibid., Jewish Law (Cases and Materials) (1999), 455–75; M. Elon and B. Lifshitz, Mafte'aḥha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (1986), (1), 89–103; B. Lifshitz and E. Shohetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (1997), 61–67.
Sources: Encyclopaedia Judaica. © 2007 The Gale Group. All Rights Reserved.