THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean 

Lesson # 81 • Exemptions from Collateral

At the conclusion of last week’s lesson it was stated that we shall discuss a loan to a widow, food preparation articles exempt, necessities to be returned for use by the borrower because these are exceptions to the general laws relating to collateral taken by the creditor. 

One of the exceptions is how a widow is treated. Throughout all of the Bible, the Torah and the prophets scold Israel for not taking better care of the widow. A lender may demand that a widow furnish collateral at the time that he makes the loan. There is also authority that the lender may never take collateral from a widow. According to the prevailing view, if there were such a prohibition it would put the widow at a distinct disadvantage since lenders would not make loans to her since they would be prohibited from taking collateral. If the loan is made without collateral. the lender may not thereafter demand that she furnish collateral. Although collateral may not be demanded of her, she may voluntarily furnish collateral to the lender. The prohibition applies both to the lender as well as to the marshal of the Beth Din. It does not matter whether she is rich or poor. The theory is that she is unhappy enough without having to trouble her with providing collateral. 

It applies not only to Food preparation articles and Necessities, but also to any other item. If any item is so taken, she may make application to Beth Din to recover the collateral. Also any type of collateral that an ordinary borrower may ask for the return of, such as Necessities or Food preparation articles, are certainly available to the widow if they have involuntarily been given by her as collateral. 

Each application by the lender to Beth Din to order the furnishing of collateral by the borrower should be judged on its merits. For example, Beth Din should not say the lender is rich and the borrower is poor and therefore the borrower should not have to furnish collateral.If Beth Din decides that the borrower shall furnish collateral, it either (a) makes an order for the borrower to produce the collateral in Beth Din or (b) directs its marshal to serve the order upon the borrower and demand collateral from him. Neither the lender nor the marshal is permitted into the home of the borrower to take collateral. The marshal requests the borrower to bring out the collateral he wishes to furnish, or may pick up any items belonging to the borrower that he finds outside the house of the borrower, even using force if necessary . The lender may not take collateral even if he finds it outside the home of the borrower. The borrower may furnish anything he desires as collateral. provided the value is equal to the amount set by Beth Din, which will usually be the amount of the loan. When the marshal obtains the collateral, he gives it to the lender. 

At the time of the making of the loan, the lender may take Food preparation articles as collateral. Similarly. the borrower may voluntarily give the marshal or the lender himself Food preparation articles, in which case he cannot get these articles back. After the making of the loan. neither the lender nor the marshal of Beth Din may seize Food preparation articles as collateral, unless the borrower consents. The exemption of Food preparation articles from seizure as collateral includes any utensils used in the preparation of food, such as a portable mill, a wooden kneading trough, a kettle used for cooking, pots and pans, bottles, a detached stove, threshing instruments, a slaughterer's knife, 16 knives, forks, spoons, drinking cups, and similar items. These laws are derived from the Torah verse: “No man shall take the mill or the upper millstone to pledge; for he has taken a man’s life to pledge” (Deuteronomy 24:6). However, food itself is not included in this exemption. 

The exemption does not apply to realty or things attached to the realty, such as a stationary mill. Real estate belonging to the borrower will be levied upon if he does not have funds to pay the debt, but may not be seized as collateral. The marshal may not even close down the mill. If he lender closed down the mill from outside, he is not violating the prohibition against entering the premises of the borrower. However, the stones that grind the grain are in the exemption if they are portable. If Beth Din ascertains that the borrower is dismembering things considered to be part of the realty and there will not be adequate assets to collect the debt after judgment, Beth Din may order the marshal to obtain the parts that were detached from the real estate. 

Items that are used for a livelihood that will result in the borrower obtaining money to buy food are not included in the exemption. If the borrower has and uses several of the same Food preparation articles, such as five pots, the marshal may not take even one of them. However, if the borrower uses only some of them, the marshal may seize the ones not used by the borrower. 

If Food preparation articles were seized by the marshal or illegally by the lender himself, they must be returned to the borrower. 
At the time of the making of the loan, the lender may take Necessities as collateral. Similarly, the borrower may voluntarily give the marshal or the lender Necessities. 

The laws prohibiting seizure of Necessities applies if the borrower does not voluntarily give the collateral to the lender. e.g., if it is seized by the marshal of the beth din, or it is illegally seized by the lender, or even if given voluntarily to the lender, if the borrower was so poor that he had no alternative but to give in, so that it is not really "voluntary." The borrower may request that Necessities not voluntarily given be returned to him. If the lender fails to return the Necessities to the borrower. the borrower may apply for an order from the beth din to compel the lender to return the item.

Even if voluntarily given, Necessities must be returned to the borrower when he requires them. Necessities are things that the borrower requires for the personal needs of himself or his wife or minor children who reside with him, or for earning a living. For example, a pillow, a bed, or night clothes must be returned to the borrower for his use at night, and daytime clothes are to be returned for his use in the morning. Similarly if collateral is taken that the borrower needs for his work, such as saws and hammers or farm animals, they must be returned to the borrower in time for him to use them during the work period. They need not be Food preparation articles. It does not matter whether the borrower is rich or poor; these things must be returned to him for his use. When the lender returns the collateral for the use of the borrower, he should do it in the presence of two witnesses and in their presence instruct the borrower that when he returns the collateral once again to the lender, it should be done only in the presence of witnesses.

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