THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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Bava Metzia, 113
BAVA METZIA 112-115 - these Dafim have been dedicated anonymously l'Iluy
Nishmas Tzirel Nechamah bas Tuvya Yehudah.
1) SEIZING AN OBJECT AS COLLATERAL FROM A DEBTOR
QUESTION: The Mishnah states that a creditor may not seize, on his own
accord, an object as collateral from his debtor. The Gemara quotes Shmuel
who says that although a Shali'ach of Beis Din is permitted to seize an
object as collateral on behalf of a creditor, he is not permitted to enter
the debtor's house in order to take the collateral.
2) SEIZING A "MASHKON" FROM THE DEBTOR OUTSIDE OF HIS HOUSE
This Halachah, that a creditor is not permitted to seize an object as
collateral from the debtor, seems to contradict another Halachah which
states that "Avid Inish Dina l'Nafshei." The Gemara in Bava Kama (27b)
teaches that a person who is owed money is entitled to seize what is owed to
him by force, without first summoning the other party to Beis Din. If we
rule that "Avid Inish Dina l'Nafshei," then why may a creditor not seize a
Mashkon from a debtor? (Rishonim, cited by the RAN, page 69a of the pages of
(a) RABEINU TAM answers that the Torah prohibits forceful usurpation only
when the object is being seized as collateral. If the object is being seized
as *payment* for the debt, then seizing it is permitted.
The KETZOS HA'CHOSHEN (97:2) raises an objection to this answer. He says
that only Beis Din may make collect an object as payment on behalf of a
creditor, because the object's value needs to be appraised. When a creditor
seizes the object on his own accord, no proper appraisal is being done, and
thus it cannot be considered a Halachicly valid collection.
(b) RABEINU TAM offers an alternative answer. He suggests that when the
Gemara in Bava Kama permits a person to seize an object that is owed to him,
it only permits him to seize an object that rightfully belongs to him (for
example, someone stole an object from him, and now he wants to take it back
by force). The Torah does not permit collecting a debt by seizing an object
that belongs to the debtor.
The RIF (in Teshuvos) states that in a case where the debtor is known to be
a dishonest, brazen, or extremely difficult person who refuses to pay his
debt, the Torah does *not* prohibit a Shali'ach of Beis Din from entering
the debtor's home to take an object as collateral. This is also the view of
the RAMAH (as cited by the SHILTEI GIBORIM and the TUR (CM 97:26), who
writes that the Torah prohibits a Shali'ach of Beis Din to enter the house
of a debtor only when there is some other way of seizing an object (or land)
as collateral. The Shiltei Giborim and the Nimukei Yosef write in the name
of the SEFER HA'TRUMAH that this, however, should not be done except in
extreme circumstances ("she'Ein Lanu Ko'ach la'Akor Mitzvah Zu Ki Im b'Koshi
OPINIONS: The Gemara says that the Shali'ach of Beis Din is not permitted to
enter the house of the debtor in order to seize an object as collateral, but
he is permitted to seize an object from the debtor when he finds him outside
of his house. The creditor himself is not allowed to seize an object as
collateral even when he finds the borrower out of his house.
Why is the creditor prohibited from seizing an object without entering the
debtor's house? The verse (Devarim 24:10) specifically says that he may not
enter the debtor's house to seize an object!
(a) TOSFOS (113a, DH Eima Lo) asserts that the prohibition for the creditor
to seize a Mashkon from the debtor when he finds the debtor outside of his
house is only an Isur d'Rabanan, because mentions only that he may not enter
the debtor's house. As the Gemara says (according to the Girsa of Tosfos),
the Rabanan prohibited the creditor from seizing an object from the debtor
outside of his house in order to ensure that he will not enter the debtor's
house to seize it (and thereby transgress an Isur d'Oraisa).
(b) The Acharonim (LECHEM MISHNEH) infer from the words of the RAMBAM
(Hilchos Malveh v'Loveh 3:4) that he holds that it is Asur mid'Oraisa to
seize a Mashkon from the debtor when the creditor finds him outside of his
house. (According to the Rambam, when the Gemara says that he may not seize
a Mashkon from the debtor outside of the debtor's house because he might
enter the house, it is giving a reason for the Isur d'Oraisa (TOSFOS YOM
TOV; see ARUCH HA'SHULCHAN 97:6).) This is also the view of the TOSFOS RID.
The Acharonim (NESIV HA'CHESED 7:5, cited by YOSEF DA'AS) explain that the
Rambam's view is based on the Sifri (to Devarim 24:10). The Sifri states,
"We only know that the Isur applies in a case where the creditor enters the
house of the debtor. How do we know to include in the Isur a case where the
creditor seized an object from the debtor outside of his house? The Torah
writes the additional words, 'la'Avot Avoto,' to include in the Isur seizing
an object from the debtor even outside of his house." (Even though the verse
specifically says that it is prohibited to enter the house of the debtor,
this is Lav Davka (S'MA to Choshen Mishpat 97:7). Alternatively, taking an
item directly from the debtor's hand is considered like taking it from his
house (EVEN HA'AZEL DH v'Nir'eh).)
3) LEAVING THE DEBTOR WITH SUFFICIENT ASSETS TO LIVE
QUESTION: Our Gemara describes the amount and type of supplies that a
creditor must leave for the debtor when he collects his debt from the
How is this Gemara to be reconciled with the well-known principle that a
creditor "may collect from a debtor even the shirt on his back" (Bava Kama
11a)? That principle implies that the creditor is not required to leave
anything for the debtor!
(a) RABEINU TAM (in TOSFOS 114a, DH Mahu) indeed rules, based on the Gemara
in Bava Kama, that "Ein Mesadrin l'Ba'al Chov" -- we do not require the
creditor to leave anything for the debtor. He maintains that the Rabanan and
Raban Shimon ben Gamliel here argue whether or not we are "Mesadrin l'Ba'al
Chov," and that the Halachah follows Raban Shimon ben Gamliel.
(b) The RIF, RAMBAM and others rule that the creditor must leave the debtor
with his basic necessities. TOSFOS in Bava Kama (11a) and the RAN here
explain that the Gemara in Bava Kama is referring to a case in which the
debtor has a spare shirt. The creditor may take that shirt from the debtor
since the debtor still has a shirt with which to cover himself.
(c) The RAMBAN and RASHBA answer that the Gemara in Bava Kama is referring
to a case in which the creditor and debtor stipulated in the Shtar that the
creditor would be entitled to collect the shirt off of the debtor's back,
thus making it a binding condition in the loan.
(The Rashba answers further that perhaps the Gemara in Bava Kama agrees that
we are "Mesadrin l'Ba'al Chov," and it is merely exaggerating when it says
that the creditor may collect even the shirt off of his back.)