posted on May 11, 2012 00:28
Collecting debt has unfortunately become one of the most common issues litigated in Bais Din. It is also one of the most unpleasant. Typically, the validity of the debt is unchallenged. The debtor acknowledges his responsibility to pay but simply claims that he does not have the funds available to do so. The debtor often feels that paying off his debts must wait until after his family’s immediate needs are satisfied. Unsurprisingly, creditors tend to have a different perspective on the matter. They tend to focus only on the fact that they are owed money which needs to be repaid immediately. This creates a very sensitive confrontation. What are the creditor’s rights and what are the debtor’s obligations? May one strip a debtor of every asset that he owns, or does Halachah protect personal assets? How do we balance the rights of the creditor while allowing the debtor to survive?
While these issues are difficult on their own, the proceedings are often emotionally charged as well. The debtor is often deeply embarrassed about the situation, and resents the pressure being applied. All too often, the creditor himself is under financial strain as well, which makes it more difficult to be sympathetic to the debtor’s plight.
Adding to the tension are two competing Halachic concepts. There is an important Mitzvah of lending money to a person in need. Extending an interest-free loan is considered a greater Mitzvah than an outright charitable gift1. Because of the importance of the Mitzvah, Chazal enacted numerous laws and rules to protect lenders2. Chazal understood that loans would only be extended if creditors have full confidence that Bais Din will enforce their rights. Any restrictions on a creditor’s ability to collect his debts would have an adverse effect on people’s willingness to extend loans in the first place. Therefore, Halacha places a strong emphasis on ensuring that creditors’ rights will be protected in an efficient and effective manner.
On the other hand, Halacha provides protections for a debtor that is truly unable to satisfy his creditors. A debtor that is unable to repay his debts is still entitled to his dignity, and, as long as he is fulfilling his halachic obligations, he is protected from pressure and embarrassment.
Negotiating between the parties and balancing the competing Halachic concepts in an impartial manner is often a difficult challenge.
- Shabbos 63.
- כדי שלא תנעול דלת לפני לווין