Pressuring the borrower to pay the loan

Pressuring the borrower to pay the loan:[1]
It is forbidden to pressure or confront [i.e. Nogeish] the debtor to pay back the loan in the event that one knows he does not have the means of how to pay. One who does so transgress the negative command of “Do not be like a debt collector.[2][3]

Who is considered to not have the means to pay?[4] The above prohibition only applies if one knows [for certain, based on his assessment[5]] that the debtor does not have how to pay him, neither in cash nor assets [i.e. Mitaltilin, including belongings or land[6]].[7] If the debtor has belongings or land which excess the basic amount that the Sages delegated for a debtor, and hence can be collected by the Beis Din in exchange for the debt, then it is permitted to pressure him to sell his assets and find the means of paying the debt.[8] If however one knows that the debtor does not own any more than the basic assets allowed by the Sages to be owned by a debtor, then it is forbidden to pressure him as stated above.[9] This applies even if the debtor has ability to work [or borrow money] to pay off the loan.[10] The above matter is to be determined by assessment of the lender, and if he asses that the debtor does not own more than this amount, the prohibition applies.[11]

Appearing before the debtor without pressuring him:[12] It is forbidden for a lender to make an appearance to his debtor at a time that he knows the debtor does not have the means to pay him. It is even forbidden to walk pass him.[13] [Some Poskim[14] learn that this applies even if the lender has no intent to pressure the debtor and is passing by to go about his own errands.[15] Vetzaruch Iyun.[16] It goes without saying that it applies if the lender intends to show up before him in order to antagonize the debtor for not paying the loan. However, after the passing of a lengthy period of time when it can be assumed the debtor feels no more remorse for his lack of payment, one may certainly pass by if one has no intent to antagonize him for the loan.[17]]

A convert:[18] One who pressures a convert to repay a loan despite knowing that the convert does not have the means to pay it, transgress three negative commands; Do not pressure them, Do not pressure a convert, Do not be a debt collector.” One is therefore required to be very careful in this.

A gentile: Some Poskim[19] rule it is a positive command to confront and apply means of pressure onto a gentile debtor [even if one knows that he does not currently have the means of how to pay].[20]

 

Summary:
It is forbidden for a lender to pressure or confront a debtor to pay back the loan in the event that one knows he does not have the means of how to pay, neither in cash nor assets [including belongings or land]. It is even forbidden for a lender to make an appearance to his debtor at a time that he knows the debtor does not have the means to pay him. It is even forbidden to walk pass him. [Some Poskim learn that this applies even if the lender has no intent to pressure the debtor and is passing by to go about his own errands.] It is a positive command to confront and apply means of pressure onto a gentile debtor [even if one knows that he does not currently have the means of how to pay].

 

Q&A

Can one assume that a regular borrower has the means to pay back the loan even if he does not know for certain?[21]
Yes. Majority of people have the means and assets to pay off a debt and hence one can assume that he has the ability to do so, even though one has not verified that he has the means to pay. If however there is reason to suspect that perhaps the person does not have the means or assets to pay, then see next for a dispute in this matter. If however the person is a known pauper and a known G-d fearing Jew who would pay if he had the ability to do so, then according to all it is forbidden to pressure him even though one does not have exact information as to his status.[22]

If one has reason to doubt whether the debtor has ability to pay back the loan, but does not know for certain, may he pressure the debtor to pay back?
Some Poskim[23] rule that if one is not certain that the debtor does not have the means to pay, even though it not certain that he has the means to pay, then the lender may pressure him to pay.[24] Furthermore, it is even encouraged for one to pressure him to pay and bring him to court so he fulfill his Mitzvah of paying back the loan.[25] Other Poskim[26] however rule it is forbidden to pressure him to pay in a case of doubt of whether he has the means to pay, as Safek Deoraiysa Lechumra. 

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[1] Admur Halvah 2; Michaber 97/2; Baba Metzia 75b; See Beir Moshe 8/26-27 for a discussion on various points mentioned here

[2] Shemos 22/24

[3] Admur ibid; Smeh 97/2

The level of pressure that is forbidden: See Admur below that even showing one’s face to the debtor is forbidden, and it is implied that doing so is included in the Biblical command. However see Kesef Kedoshim 97/2 that seemingly only one who enters his house to take his belongings transgresses this command, while simply pressuring him is a Rabbinical injunction based on this command. He however then concludes that it is included in the Biblical command.

[4] Admur Halvah 2 and 13

[5] Kesef Kedoshim 97/2

[6] Kesef Kedoshim 97/2

[7] Admur Halvah 2

[8] Admur Halvah 13; Michaber 97/15; Kesef Kedoshim 97/2

The reason: (As the Torah only prohibited pressuring the debtor to pay when he does not have any means at all to pay.) [Admur ibid in parentheses; See Imrei Yaakov Biurim “Kdei”; Pischeiy Choshen 2/18]

How much pressure may one place on him: In a case that the debtor has assets to collect from the debtor may even be hit until he agrees to pay back the loan, and doing so does not incorporate the prohibition of “Do not be like a Noshe”. [Admur ibid; Michaber ibid; Kesubos 86a; See Michaber ibid that he may be hit until he dies! Now, although the above case is discussing the Shliach Beis Din and not the lender, and hence a the lender may never enter the debtors house to collect a loan [Admur ibid], nevertheless no distinction is made regarding hitting him. Vetzaruch Iyun.

[9] See Admur 5, brought in Halacha ??, for the list assets that the Sages allowed the debtor to keep for himself, and that he must even sell his house, Sefarim and Shabbos clothing of his children in order to pay the debt. Thus in most cases today, people won enough assets to be able to sell and pay the loan.

[10] Admur Halvah 5; Michaber 97/15; However see Beir Moshe 8/27 who says that while one may not pressure him to borrow one may pressure him to go to work, Vetzaruch Iyun Gadol as it contradicts the above ruling

[11] Kesef Kedoshim 97/2

[12] Admur Halva 3; Michaber ibid; Bab Metzia 75b

Is this prohibition Biblcial or Rabbincial: From Admur ibid it is implied that doing so is included in the Biblical command. However see Kesef Kedoshim 97/2 that possibly doing so is only a Rabbinical injunction based on this command. see Beir Moshe 8/26-27 where this matter is discussed in length

[13] The reason: As the debtor becomes ashamed when he sees the lender and he does not have the means to pay him. On this the Torah hinted in the verse “Do not be like a debt collector”, even though he is not actively pressuring to collect the loan. [Admur ibid; Michaber ibid]

[14] Aruch Hashulchan 97/2; See Beir Moshe 8/26-27 where this matter is discussed in length; Perhaps this is the entire novelty of Admur who wrote “and even to walk pass him”; Vetzaruch Iyun Gadol, as explained next

[15] As nevertheless this causes the debtor to be ashamed, and is caused him to be pressed about the loan, and hence the lender is like a debt collector, even though he has no intent to collect or pressure him.

[16] Tzaruch Iyun Gadol on the ruling of the Aruch Hashulchan, and possible implication of Admur, as accordingly, would it be forbidden to go to the same Shul as the debtor or go to a function that one knows the debtor is found by. Likewise, if one is in a store and sees the debtor there, must he leave the store? How far must one go to avoid causing another Jew pain if doing so infringes on his own lifestyle and he has no intent to harm the Jew? In my opinion one must say the entire prohibition is to intentionally appear before him with intents of pressuring him, and so is implied from the word “Leharoso” which implies an aggressive appearance. Perhaps however one can say that while one is not required to avoid going to Shul or to a function that he is in, nevertheless, if he sees him he may not pass or sit in front of him, and is to go through a different route. Hence it prevents his debtor from the shame and does not infringe on his ability to do errands. Veztaruch Iyun! See Beir Moshe 8/26-27 where this matter is discussed in length and he brings two different ways of explaining this Gemara, one like we said above and one like the AZuch Hashulchan

[17] Aruch Hashulchan ibid

[18] Admur Onah 31

[19] Rambam Halvah 1/2; Sifru Devarim 15/3

[20] The reason: As the verse states “And the gentile you shall confront to pay”, this is a positive command and not a mere voluntary suggestion. [Admur ibid]

[21] Kesef Kedoshim 97/2; Implication of Admur Halva 2 who says “Knows does not have the means to pay” thus implying that if one does not know this information then there is no prohibition to pressure him, even though he also does not know for sure that he has the ability to pay; See also Michaber 99/4 and Smeh 99/13 that imply most people are able to pay and can be pressured based on this assumption and only one who is Muchzak to be a pauper does not have this Chaazaka

[22] Michaber ibid

[23] Kesef Kedoshim 97/2

[24] Kesef Kedoshim 97/2; See also Michaber 99/4 and Smeh 99/13 that implies most people are able to pay and only one who is Muchzak to be a pauper does not have this Chaazaka

The reason: We do not apply the rule of Safek Deoraiysa Lechumra in such a case as the Torah explicitly states the prohibition only applies against an Ani Beamecha, which means that he is considered by all to be a pauper. [ibid]

[25] Kesef Kedoshim 97/2

[26] Pela Yoeitz

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