Repossession-Hotzah Lepoal–Collecting possessions of debtor to repay a debt

Repossession-Collecting possessions of a debtor in order to collect a debt:

Debt due to a loan:[1] A lender may not forcibly collect items from a debtor to repay a loan. It may only be done through a Beis Din, through a representative sent by them to collect the loan. If the lender transgressed and collected the loan on his own in a forcible manner, whether he grabbed an item from him in the street, or he entered his home (without permission), then he transgresses a negative command.[2] However, the collector sent by the Beis Din has authority to force the debtor to make a payment or provide collateral. If he plans to collect items in exchange for the debt [and sell them off to pay the debt], then he may even enter the debtors home. However, in such a case that he is collecting items to pay the debt, he must leave the debtor with the basic needs provided under the provision of Siddur Baal Chov.

Debt due to stalled payments on merchandise, services, rent, employee, damages:[3] The above law which allows only a court representative to take possession of items from the debtor, applies specifically regarding debt incurred due to a loan. However, by other forms of incurred debt, such as delayed rent payment for a car, item or a home, or delayed payment to an employee, or delayed payment to reimburse an item one stole[4], it is permitted for the person who is owed the money to personally make the collection and he may even enter the home of the debtor to take possession of belongings. The above, however, only applies if the debt did not become the status of a loan. If, however, the debt was reinsured into a loan [i.e. Zakfan Alav Bemilveh] then it follows the same laws as all debt due to loans.[5] [Practically, as soon as the final due date arrives, and the employer or renter has still not paid his obligations, the owed money’s become a debt.[6] Some say, however, that it becomes a debt as soon as one makes a calculation of the total amount he is owed.[7]]

A guarantor:[8] It is permitted for a lender to enter the home of the guarantor of a loan in order to repossess collateral for his loan. If, however, the guarantor was an Eiruv Kablan[9], then he has the same status as the borrower and it is forbidden for the lender to enter his home. 

 

Summary:

It is forbidden for an individual to forcibly collect payment for a debt, or forcibly take items in exchange for the debt, unless the debt was not incurred due to a loan, and was not reinsured into a loan. It is permitted for an emissary of the Beis Din to forcibly collect a debt from the debtor, and enter his home and take possession of items in order to reimburse the loan. He must however leave the debtor with the minimum objects required in Siddur Baal Chov.

Q&A

May one obtain a writ of execution [U.S.]  or Hotzah Lepoal [Israel] to collect a debt?[10]

If the debtor refuses to pay the debt after being confirmed by the Beis Din, then it is permitted to turn to the sheriff to obtain an execution order to force the debtor to pay the debt. The representatives of the execution order have permission to enter the home of the debtor and collect valuables in order to repay the debt. They must however leave the debtor with the items provided under the codes of Siddur Baal Chov.

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[1] Admur Halva 7; Michaber 97:6; Mishneh Bava Metzia 113a

[2] The reason: As the verse states “Lo Savo El Beiso…” from which we learn that it goes without saying that he cannot forcibly take an item from him even outside of his home. [Admur ibid]

[3] Admur Halva 14 and Gezeila 29; Michaber 97:14; Rambam Malveh 3:13; Braisa Bava Metzia 115a; Aruch Hashulchan 97:22

[4] Admur ibid; Shach 97:6

[5] Admur ibid; Michaber ibid; Gemara ibid; Sifri 142

The reason: As the verse [Devarim 24:10] states “Ki Sashe Bereiacha Masas Meuma Lo Savo El Beiso Lavot Avoto.” [ibid] Masas Meuma means any debt.

[6] Admur Halva 39; Rama 67:17; Aruch Hashulchan 67:8

[7] Admur ibid

[8] Admur Halva 14

[9] The difference between a regular guarantor, and an Eiruv Kablan is that a regular Areiv only agrees to hold responsibility in paying the loan in the event that the original borrower cannot pay. However, an Eiruv Kablan accept responsibility of payment even if the original borrower has ability to pay back, and the lender has the discretion to choose who he wants to collect the loan from. [See Michaber C.M. 129:8 and 15]

[10] Shevet Halevi 10:263; See Chevel Nachalaso 4:49

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