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December 18, 2014 / 26 Kislev, 5775
 
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Taking A Loan

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Shlomo decided to go through papers that had accumulated during the previous months. While doing so, he came across a note that he had jotted down about lending $100 to Menashe.

“Right, I remember,” he said to himself. “A few months ago Menashe needed $100 and he still hasn’t paid me back. I hope he still remembers the loan.”

Shlomo called Menashe. “Hello, Menashe, how are you?” he asked.

“Fine, thank God,” replied Menashe. “What’s up?”

“I lent you $100 a few months ago.”

“What are you talking about? I never borrowed from you!”

“You don’t remember? You were doing some shopping just before Purim and were short of cash. You needed $100 and asked me to lend you.”

“I don’t remember such a thing at all. You’re harassing me for no reason.”

Shlomo hung up. “How am I going to get the money back?” he thought. “I don’t have sufficient proof to win a case in beis din or court. But I have no doubt whatsoever that I lent him the money and he still owes it to me.”

Shlomo pondered what to do. He spoke with a friend, who alluded to the possibility of taking the loan back on his own.

What are you suggesting?” asked Shlomo. “Is there some way I can take the money from him?”

“Perhaps you can sneak into his house, or grab the money from him when no one’s watching,” said the fried. “After all, you are certain that he owes you.”

“But I don’t have any proof,” objected Shlomo. “He denies the loan.”

“All the more reason for you to take matters into your own hand,” said his friend. “You can’t get recourse through beis din. I suggest you consult with Rabbi Dayan; see what he has to say.”

Shlomo called Rabbi Dayan. “I lent someone money, and he now denies the loan,” he began. “If the opportunity presents itself, am I allowed to grab money from him?”

“There are some situations in which a person can take the law into his own hands [oseh adam din l’atzmo], especially if he cannot get proper remedy through beis din,” said Rabbi Dayan. “However, there are serious limitations regarding collecting a loan, in contrast to other monetary obligations, such as retrieving a stolen item.” (C.M. 4:1)

“Why are loans more stringent?” asked Shlomo.

“Regarding loans, there is a prohibition to go into the borrower’s home and forcibly take collateral,” replied Rabbi Dayan. “Lo tavo el beiso la’avot avoto – do not go into his house to collect his collateral. Even an agent of beis din may not do so. He must ask the borrower to willingly bring out the collateral or grab something from him outside his house.” (C.M. 97:6)

“So can I take something from Menashe outside of his house?” asked Shlomo.

“The SM”A (97:7) writes that only an agent of beis din is allowed to,” replied Rabbi Dayan. “The lender is not allowed to grab from the borrower even outside his house.”

“Then it seems there’s nothing to do,” said Shlomo. “Does anyone allow it?”

“There are two questionable leniencies,” answered Rabbi Dayan. “Sha’ar Mishpat maintains that the lender is prohibited to grab only when he has recourse through beis din. However, if the borrower denies the loan and the lender has no recourse through beis din, he may grab. The Ketzos and others reject this distinction.” (Pischei Teshuvah C.M. 4:1)

Rabbi Dayan paused and then added, “Furthermore, Rabbeinu Tam maintains that only taking an object as collateral is not allowed, but taking something as payment is allowed. His opinion is cited in Shulchan Aruch [C.M. 97:15], although the Ketzos Hashulchan questions this, as well.”

About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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