THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean 

Lesson # 82 • Items exempt from the levy to pay the creditor 

Last week we discussed the procedure of making the lender feel secure so that he will have something in his hands if he has to enforce collection of the debt, and those things that are exempt from being used or seized as collateral. In this week's lesson we discuss the procedure to be followed in gathering the assets of the borrower and making a levy on them. By levy is meant that Beth Din will sell them and use the proceeds thereof to pay the lender the outstanding debt. 

Just as there were items that were exempted from the seizure for collateral, so is there an exemption of certain items from a levy. This lesson describes the items that are exempt. 

Beth Din, upon application of the lender, who either has a judgment against the borrower or the admission of the borrower that he owes the money, orders the borrower to give it a list of all of his assets, including real estate, chattels. cash, notes of indebtedness, household effects, food, work tools, and anything else of value, no matter how small. Beth Din then exempts the following items from its levy: 

(i) foodstuff for thirty days, the foodstuff is the type of food eaten by a person of average means in the community , not by people who are rich or by people who are poor. The poor status of the borrower is not relevant for this purpose: Even if he is poor, he is given the foodstuff eaten by a person of average means. However, if he was rich he is given the type of food eaten by rich people. (ii) clothing for one year. Whether the borrower was rich or poor. He is permitted to retain the clothing worn by a man of average means in the community. (iii) a bed to sleep in, together with bedding. (iv) table and chairs. (v) clothing for work including work shoes. ( vi) religious articles such as a prayer shawl and tefilin. If the borrower is a laborer, he has exemption for two each of his tools of his trade. If he has more that two of any kind, then he is left with two, and the balance may be levied upon. If he has less than two of one kind and more than two of another kind, then the excess item is not permitted to be exchanged for the items of which he has only one so as to enable him to have two of each kind.

The exemption is only for the use of the borrower. It does not include any exemption for his wife and children, since it is not the obligation of the creditor but rather that of the entire community to provide the family of the borrower, along with any other poor persons, with necessities. They have the status similar to any other poor persons, who are provided for by the community. Otherwise it will be the lender who is subsidizing the debtor’s family. 

The creditor has no rights in any of the property belonging to the debtor's wife, although the debtor is using her property pursuant to the rights of a husband in the wife's property .Unless otherwise agreed upon between them, the property that a wife brings into the marriage (the dowry) may be used by the husband and all income there from belongs to the husband.

Such property may be under the stewardship of the husband in of two ways. In either case he keeps all of the profits of the property. In one method, known as nichsai tzon barzel (iron sheep property), the husband guarantees to the wife that the property will be returned to her upon divorce or his death at the same value as upon the date upon which he took possession, regardless of whether he makes profits or loses money during his operation of the property. In the other method the property may be delivered by the wife to the husband as nichsai mulog (milking property), in which case the husband does not guarantee the value of the property when it will be returned to her upon divorce or the husband's death. In this situation any gain or loss in the value of the property is the wife's. In both cases the husband enjoys the profits and bears the losses in the operation of the property. 

Property that the husband transferred to the wife after the marriage and prior to the borrowing should be examined to see if the transfer was real or was illusory in order to protect the assets of the husband from levy by his creditors. Nor does the creditor have a right to any of the gifts given by the husband to the wife at the time of the marriage. As to gifts that the husband gave to the wife and children during the marriage, they belong to them, and the creditor has no rights to them, unless it can be shown that when the husband/father purchased the items, it was with the intent that they should belong to the husband with the wife or children permitted to use them.

If the gifts were of real estate that the husband owned at the time that he borrowed money from the lender, then the lender's lien attached to the real estate before the gift to the wife or the children and the creditor may levy upon such property. However, the dowry that the wife brought into the marriage as gifts to the husband may be levied upon by the creditor, since these belong to the husband. 

If at the time that the loan is made the borrower agrees that he will not seek any exemptions from levy, then the stipulation is binding on him and the lender can levy on all items belonging to the borrower. The stipulation of waiver is important. If the stipulation is worded in such away as to state that the laws of exemption will not apply in their situation then the stipulation would not be binding since it contradicts a Torah requirement that there be exemptions, and the law cannot be shunted aside. To effective the stipulation must state that the borrower will not avail himself of the exemption.

The fact that the borrower liened all of his belongings to the liener is not a waiver of his intent to seek the exemptions provided by law, unless the waiver was explicitly stated. According to the majority opinion, the laws of exemption would not apply if the borrower took an oath to repay the loan. The other opinion holds that the intent of the oath was to repay out of property that is not exempt. There is an opinion that the exemptions apply only if the debt arose from a loan, but not from other forms of indebtedness, such as for wages. This opinion holds that the return of household Food preparation articles and Necessities are also not applicable except in cases of debts arising from loans. 

The subject matter of this lesson is more fully discussed in Vol. IV, Ch.97 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. Questions to quint@inter.net.il