Siman 97

**[To lend to a poor person, and not to press him, and not to take as a pledge utensils used for preparing food or the garment of a widow, and the returning of a pledge, and the law of the arrangement for a debtor; and in it are 35 seifim]:** It is a positive commandment to lend to the poor of Israel, and it is a greater mitzvah than tzedakah, for the recipient [of tzedakah] is already dependent on others, whereas this one who lends to him may perhaps rescue him so that he will not be dependent on others, and will save him from the gift of flesh and blood, and from shame, and from pressure. And thus our sages, of blessed memory, said: Greater is one who lends than one who performs tzedakah, and one who invests in a pocket for half the profit is greater than all of them [Shabbat 63a]. And one's poor relative takes precedence over other poor people, and the poor of one's city take precedence over the poor of another city. And even a wealthy person who needs a loan, it is a mitzvah to lend to him. And it is a mitzvah to benefit another even with words and to advise him with counsel that is proper for him in his business, and this too is included in gemilut chasadim. And the Torah was strict regarding one who refrains from lending, as it is said: "Lest there be a base thought in your heart... and your eye be evil against your needy brother." And at the beginning of siman 39 we explained more of this; see there.

It is written in the Torah, "You shall not be to him as a creditor." From here we learn that it is forbidden to press the borrower to pay when one knows that he does not have the means, and it is even forbidden to appear before him, because he is ashamed upon seeing the lender when his hand cannot afford to pay him. And if he passes before him, it is as if he judged him with fire and water [end of chapter 5 of Bava Metzia]. Therefore, the lender must be very careful regarding this. However, if the matter has grown old and he has become accustomed to it to the point that he has no distress or shame from this, and the lender's intention is not to distress him or shame him, there is no prohibition in this [it appears to me].

And just as it is forbidden for the lender to demand from the borrower when he knows that he does not have, so too it is forbidden for the borrower to withhold the money of his fellow when he has it. And even if he defers him from day to day and says to him, "Go and return, and tomorrow I will give," and he currently has with what to pay, he violates a prohibition of the words of tradition: "Do not say to your fellow, 'Go and return...'" [Proverbs 3]. And similarly, it is forbidden for a borrower to take a loan and spend it without great need, thereby losing the lender's money until he will not find from what to collect his debt. And if he does so, he is called wicked, as it is said: "The wicked borrows and does not pay," for the wicked borrows in order not to pay, as he does not spend the money for business or for necessity. And when the lender recognizes the borrower as one who possesses this trait, it is better not to lend to him than to lend to him and then be required to press him afterward and violate "Do not be to him as a creditor."

And if the lender comes to beit din to request to take a pledge from the borrower so that he may be secure in his money, or to be paid by him now, the beit din must adjudicate for him. They shall not say, "so-and-so is poor and has nothing, and so-and-so is wealthy and does not need this," for one does not show mercy in judgment. The beit din should only do so when the time for payment has arrived and not before, since he lent to him without a pledge, unless the beit din sees a justification that it is necessary to withhold or to seize before the time, as written in siman 73, section 15; see there.

If one lent to him without a collateral [Levush] and later came to take a collateral from him not at the time of his lending, when the time for payment arrived and he did not pay him [Rashi Bava Metzia 113a], according to Torah law it is forbidden for the lender to take a collateral himself. And if he took the collateral himself, he has violated the negative commandment of "thou shalt not go into his house to fetch his pledge," and one does not receive malkot for this negative commandment [the Rambam, chapter 3 of Laws of Creditor and Debtor] because he is liable for its responsibility and must pay if it is lost [the Ra'avad ibid.], and it is a negative commandment transformed into a positive commandment like the negative commandment of robbery. The Rambam, of blessed memory, wrote, and this is his wording: If a creditor transgressed and entered the house of the debtor and took a collateral from him, or if he snatched the collateral from his hand by force, he does not receive malkot, for it has been transformed into a positive commandment, as it is said, "Thou shalt surely restore to him the pledge when the sun goes down." And if he did not fulfill the positive commandment within it, such as if the collateral was lost or burned, he receives malkot, and he calculates the value of the collateral and claims the remainder in court. Thus far his words. And that which he wrote, that it is transformed into a positive commandment from the verse "thou shalt surely restore," even though the plain meaning of the verse deals with one who took a collateral with permission, nevertheless the sages of blessed memory expounded [Bava Metzia 31a] that it refers also to one who took a collateral without permission; see there [and so it appears in Temurah 6a, see there in Tosafot]. However, regarding that which he wrote, that if it was lost or burned he receives malkot, they challenged him, for behold it is subject to repayment, and so the sages of blessed memory said [Makkot 16a] explicitly so [the Ra'avad and Maggid Mishneh]. But in truth it is well-settled, for behold, this is certainly so: if we say regarding every negative commandment transformed into a positive commandment that one is not liable for malkot unless he nullified the positive commandment with an action, you would never find malkot in a monetary obligation in any manner. But the Rambam, of blessed memory, ruled in chapter 18 of Sanhedrin that as long as it is possible to fulfill the positive commandment, he does not receive malkot, but when it is impossible for him to fulfill it, even if he did not nullify it with his hands, he receives malkot [according to the version of the Rif there, that Rabbi Yochanan holds so, and only "fulfilled it and did not fulfill it" is explained as as long as it is in his power to fulfill; see there and in chapter 1 of Na'arah, and not like Rashi]. According to this, certainly in robbery it is always in his power to fulfill, and so too regarding a collateral, if it is worth more than his loan, it is in his power to fulfill because he must return the excess. But when the collateral is not worth more, and certainly when it is worth less than the debt, it is impossible for him to rectify the negative commandment of "thou shalt not go into his house" when the collateral is lost, for behold, he does not need to pay because of his debt that is owed to him; it turns out that the negative commandment was violated and to fulfill it is impossible. And specifically "nullified it with his hands" cannot be said in this case, for at the time it was lost, or even if he destroyed it with his hands, it is not relevant to say he nullified it because it is possible through payments, and afterwards when he does not pay, this is not an action with his hands, but it is also not a fulfillment [and that which the Gemara answers there, that it is possible through payments, it answers regarding that which it challenged, that you find it also in "nullified it and did not nullify it," and so wrote the Ramban in Milchamot at the end of chapter 6 of Shevuot, and see Shach siman 72, subsection 9; and according to what I wrote, even in "fulfilled it and did not fulfill it" you find it when it is worth more than the debt] [see in Bedek HaBayit section 12, starting with the words "the Rambam wrote etc." and it appears that the same law applies etc. and it requires great study]. And that which the Rambam wrote, that it is transformed into a positive commandment, even though regarding a wealthy person it is not transformed into a positive commandment—for the commandment to return the collateral is only regarding a poor person, as it is written, "And if the man be poor, thou shalt not sleep with his pledge"—nevertheless, since regarding a poor person it is transformed into a positive commandment, also regarding a wealthy person he does not receive malkot [Taz]. And even though in every negative commandment transformed into a positive commandment one receives malkot in a place where the positive commandment is not applicable—such as in the case of one who rapes a maiden and divorced her, that if he is an Israelite he returns her and does not receive malkot, and if he is a Kohen he receives malkot, and so too regarding the collateral itself, that if he lost it or burned it he receives malkot—nevertheless, regarding a wealthy person he does not receive malkot, since regarding this wealthy person himself, should he become poor, it is transformed into a positive commandment, and how shall we lash him? Perhaps he will become poor tomorrow and will need to return it to him, and poverty is common, as it is found in the Jerusalem Talmud, chapter 9 of Nedarim, halacha 4 [and with this, all that the Mishneh LaMelech and the Ketzot HaChoshen challenged is well-settled; and what the Tosafot wrote in Yoma 36b is not relevant here, for it is not similar to a standard negative commandment transformed into a positive commandment according to Rashi's explanation there and in Tosafot Chullin 82b starting with the words "one who sows," this is the explanation: since the essence comes for the plain meaning of encroaching on a boundary, only kilayim is included in this, it is impossible for the secondary to be more stringent than the primary; and furthermore, they relied on the second answer, and "from when the river swept it away" is not a difficulty at all, and contemplate this].

And how shall he act? He goes to the beit din and requests of them that it is his desire that they take a collateral from the borrower so that he may be secure in his money. The beit din sends for him and requests from him collateral corresponding to the money of the lender, or they send their agent. Even their agent shall not enter the house of the borrower to take collateral; rather, if he finds something of his outside, he shall take it, or he says to him that he should bring out collateral and hand it over to him, as it is written: "And the man to whom you lend shall bring out the pledge to you outside." And the lender himself is forbidden to do even this unless the borrower gives it to him of his own will. This prohibition is of rabbinic origin, a decree lest he enter his house [Gemara ibid.] because he is anxious for his money. From the Rambam it is implied that from the Torah it is forbidden for the lender to take the collateral from the borrower by force even outside [and it must be said that he holds that the Gemara's reasoning was merely a rejection, but Tosafot did not write so, see there]. The agent of the beit din takes collateral from the borrower outside against his will and gives it to the lender. The borrower gives any object he wishes, even the least of vessels, provided that it is worth the money of the debt. In the Yerushalmi [Chapter 5 of Gittin] it is stated that for this reason the Torah forbade entering the house of the borrower to take collateral: so that the borrower may give what he wishes. And so the sages, of blessed memory, said [Bava Kamma 8a]: What is a person's way? To bring out the least of vessels [see Tosafot there 35a and it requires great study]. Even if the lender requests to enter the house of the borrower and to write down everything that is in his house, the beit din does not grant him his request to enter his house at all; for since the Torah was particular and wrote "outside you shall stand," it implies that entry for the purpose of collateral, even if he will not distrain it now, is forbidden [Sma]. It is also forbidden to do so through force unless the borrower does not obey the law, for then the lender takes permission from the beit din and acts through force as I wrote in siman 26 [it appears to me]. And although in siman 4 it was explained that a person may take the law into his own hands, nevertheless, to distrain him not at the time of his loan is forbidden by the decree of the Torah, as I wrote there.

It is written: "He shall not take a lower or upper millstone as a pledge, for he takes a life as a pledge." We have learned that it is forbidden to take as a pledge—not at the time of the loan, even by a messenger of the beit din—vessels used for preparing food. And it is not specifically a lower or upper millstone, for since the Torah suspended the reason upon the fact that "he takes a life," it implies that all vessels used for preparing food are forbidden to be taken as a pledge. However, at the time of the loan, when the borrower gives them willingly, it is permitted to lend upon them; thus agreed our early teachers, for the language of "taking a pledge" [chavalah] implies against one's will, which is not at the time of the loan. But the Rambam, of blessed memory, wrote there that it is forbidden both at the time of the loan and not at the time of the loan, and all the sages of the generations have already wondered at him regarding this reasoning of his [and there is a further difficulty, for if so, what did Rav Yosef challenge there: "Who is it? If we say a creditor etc." let him say at the time of the loan]. And it appears to me regarding his opinion, of blessed memory, that according to what we establish that even a messenger of the beit din is forbidden to enter the house of the borrower, and the lender himself is forbidden to seize even in the market from the borrower, and the verse "If you surely take as a pledge [chavol tachbol] your neighbor's garment, you shall return it to him by the setting of the sun" which is written in Mishpatim refers both to with permission and if he did not take it as a pledge with permission but rather with a prohibition [ibid. 31b], and the language of "chavalah" certainly in its plain meaning implies even from within his house [Rashi ibid. 113], and if so, the language of "He shall not take as a pledge [lo yachbol] a lower or upper millstone" also implies both with permission and without permission. And from within the house of the borrower, you do not find it with permission except at the time of the loan. However, his intention is not that when the borrower comes and requests from the lender to lend to him upon a vessel for food that it is forbidden to lend to him; rather, this is what he means: that when the lender lent to the borrower in the house of the borrower and stipulated with him at the time of his loan to give him a pledge—whatever pledge the lender wants—it is forbidden for the lender to take a vessel for food without the knowledge of the borrower [and the sugya there is according to the initial thought, but according to the conclusion that it is a dispute of Tannaim, see there, perforce according to the Baraita that a messenger of the beit din is forbidden to enter the house of the borrower, one must say as I have written, and examine this carefully].

According to what we have explained regarding the opinion of the Rambam, of blessed memory, it appears that all the poskim would agree with him on this and do not disagree on the law at all; for certainly logic dictates that when one lends him upon a mashkon and did not specify to him which mashkon, it is forbidden for the lender to take a vessel used for food preparation, for go after the reasoning; and it requires further study as to the law.

The millstone and the rider that the Torah prohibited are only a hand-mill, which are movable objects, but water-mills or wind-mills that are attached to the ground are like the ground, and the law of a pledge does not apply to them, but rather collection as with other lands, for the beit din does not seize land as a pledge except when they collect it. Therefore, the beit din does not send their agent to close the mill-houses where they grind until he pays, for in any case, if it is necessary to collect from this, they collect from it like other lands, as that which is attached to the ground is considered like the ground regarding the collection of a debt [Rashi Ketubot 69a s.v. Atztruvla, and the difficulty of Tosafot s.v. Me'amla is answered, and examine this closely]. However, if the lender himself closed the mill to take it as a pledge, he does not violate the negative commandment of "do not enter his house to take his pledge," for this is not included in the category of a pledge, and he is also not obligated to open it at the time of work [Sma]. Nevertheless, if the lender himself entered the mill-house and took the upper millstone or the iron and the pivot and the wheels, they have already become movable objects and they have the status of a vessel for preparing food, and he must return them at the time of work, as will be explained, and he has violated the negative commandment of "for he takes a life as a pledge," and even an agent of the beit din is forbidden from seizing them as a pledge [Taz]. And some say that even to close the mill is forbidden to the lender, for he must not hinder his work, and he is included among the robbers, and likewise it is forbidden for him to hinder any work of the debtor [Nimukei Yosef at the end of the chapter HaMekabel].

However, if the beit din sees that the debtor is damaging the millstones, such as by detaching the lower millstone or the like from its place of attachment in order to smuggle it from the creditor, and likewise if he uproots plantings or destroys the structure of houses to smuggle them from the creditor, the beit din collects from them for him. For whenever the beit din sees a loss that the debtor causes the creditor, they collect for the creditor even when the time to collect has not yet arrived, as was written in siman 73. And even not in the presence of the creditor they collect [the Gra], for anyone who has the means and does not want to pay his debts, the beit din is obligated to strive with every possibility to rescue the oppressed from the hand of his oppressor, as will be explained.

That which the Torah forbade to take as a mashkon the vessels of okhel nefesh, this refers specifically to vessels with which one actually prepares okhel nefesh, such as millstones and kneading troughs in which dough is kneaded, and cauldrons and pots in which one cooks, and vessels in which okhel nefesh stands, such as jugs of water, wine, and oil, and a slaughtering knife even though it only serves to permit the forbidden, and likewise a sickle, a threshing sledge, a shovel, a winnowing fan, a sifter, a sieve, and an oven in which one bakes and cooks when they are movable as was the case in the time of the sages of the Shas, and likewise pots, shovels, forks, spits, cups, bowls, and the like. And even though there are among these vessels those where the food is not yet ready to be eaten from this vessel, such as a sickle, for even after the reaping one still needs to grind, knead, and bake, nevertheless, since this is a vessel made for the sake of food, it is forbidden to take it as a mashkon. But vessels with which one does not actually prepare okhel nefesh, even if it is a vessel made for his livelihood, such as a pair of barber's scissors or a pair of plowing oxen, and likewise the plowing cows themselves, even though they lead to okhel nefesh in that from his livelihood he has okhel nefesh, it is permitted to take them as a mashkon. And all craft tools one is permitted to take as a mashkon through a messenger of the beit din, not like the one who disagrees in this, for the Torah did not forbid taking okhel nefesh vessels as a mashkon because of the loss of his livelihood, for behold, we take from the debtor everything he has and we do not leave him anything except the sidur that will be explained, and we do not concern ourselves with the loss of his livelihood. And the vessels of okhel nefesh that the Torah forbade is a decree of the Torah, and also because of the distress that we take from him this vessel of okhel nefesh for him and the souls of the members of his household literally, and because of his distress the Torah forbade it. Therefore, plowing cows and their yoke, even though they are a preparation for okhel nefesh, since the food is not yet before him, the Torah did not forbid. Consequently, cows that tread upon grain in order to remove their husks, it is forbidden to take them as a mashkon. And okhel nefesh itself is permitted to be taken as a mashkon, for specifically regarding vessels with which one prepares okhel nefesh did the Torah care, because with these vessels he can prepare okhel nefesh forever, but the foods themselves are taken as a mashkon when we leave him the sidur that will be explained, for since we leave him food for thirty days, we do not need to worry further for him. And even though sidur is not at the time of taking the mashkon but rather at the time of payment, nevertheless, regarding okhel nefesh itself, we certainly provide a sidur even at the time the messenger of the beit din comes to take it as a mashkon, for if not so, what will he eat [it appears to me]. And that which the Torah forbade for a vessel of okhel nefesh, this is specifically for a mashkon, but at the time of payment, he is obligated to pay even with a vessel of okhel nefesh [Nimukei Yosef, end of chapter HaMekabel].

Even if the debtor had several of each type, for example, if he had five millstones, one is not permitted to seize even one of them as a mashkon. However, if he only performs work with one of them, it is permitted to seize the rest as a mashkon through a messenger of the beit din. And similarly with other vessels for ochel nefesh, it is permitted to seize them as a mashkon regarding those that he does not use. If one seized many vessels for ochel nefesh that he does use, he is liable for each and every vessel. Even two vessels that are joined together to perform one task, such as the shears with which one clips vegetables, he violates two prohibitions.

If one transgressed and took as a mashkon vessels used for preparing food, whether he took them as a mashkon himself or via a messenger of the beit din, he must return them against his will. Therefore, one does not receive lashes for this negative commandment unless they were lost before he returned them [the Rambam there]. When he returns them, he does not return them permanently, but rather during the time that he needs them for his work, and afterward he takes them from him, and when he needs them for his work, he returns them to him [Sma]. Our teacher, the Rema, wrote that only vessels for preparing food must be returned, but if the lender took other things as a mashkon, even though he transgresses a negative commandment, nevertheless, what he has done is done, and he does not need to return them to him until he pays him. Thus far his words. From the Rambam, of blessed memory, it is implied that vessels for preparing food are returned immediately and forever until the time of the collection of his debt. In all of this, there is no prohibition unless he took the mashkon himself or via a messenger of the beit din against the will of the borrower; but if the borrower gave vessels used for preparing food of his own will to the lender or to the messenger of the beit din, it is permitted to take them.

It is written: "You shall not take a widow's garment as a pledge." From here we learn that it is forbidden to take a pledge from a widow, even through a messenger of the beit din, not at the time of the loan, against her will. Whether she is poor or whether she is wealthy, one does not take a pledge from her, because a widow's soul is bitter to her and the Torah forbade causing her distress. Specifically a widow, but a divorcee or another woman is like any other person, unlike those who disagree on this [Shach and Urim VeTumim]. And that which the Torah wrote "garment," the same applies to other things; it wrote "garment" as a greater novelty, that even though it is not among the vessels used for preparing food and is permitted with any other person, it is forbidden with a widow. If one transgressed and took a widow's garment as a pledge, we take it back from him against his will at the time of her need for this garment, and if she admits [to the debt], she shall pay, and the beit din collects from her, for the Torah only said not to take a pledge from her, but not that one should not collect from her. If she denies the debt and he has no migo, such as if he took it before witnesses and they saw it in his hand, she shall swear like any other person, and we do not exempt her without an oath [Shach]. And that which we wrote, that we take it back from him at the time of her need, this is according to the opinion of the Ramban and the Rashba, but from the Rambam it implies that we take it back from him immediately [the Gra], as I wrote in the previous section regarding vessels used for preparing food. One does not receive lashes for this negative commandment since he is obligated to return it; but if the pledge was lost or burned before he returned it, he receives lashes and calculates the value of the pledge and deducts it from his debt, and she shall pay the remainder. And that which we wrote, that if it was lost or burned he receives lashes, this is according to the opinion of the Rambam, but the other poskim disagree with him, and we have already explained this in section 5, see there. The prohibition is only not at the time of the loan, but the Rambam, of blessed memory, wrote that even at the time of the loan it is forbidden, and most of the poskim disagree with him. According to this, for the Rambam, there is no permission to lend to a widow upon a pledge, for in this case it is impossible to explain as I wrote in section 7 regarding the upper and lower millstones, see there. But the matter is very astonishing, for if so, a poor widow whom they do not trust without a pledge, her power in borrowing will be diminished compared to all other people. Therefore, it appears to me that certainly if the widow comes to borrow upon a pledge, it is permitted to lend to her even according to the opinion of the Rambam, and he is performing a mitzvah. And even if she comes to request a loan and he said to her, "I will not lend to you without a pledge," and she brought him a pledge, he is permitted to receive it. Rather, the prohibition is that if she established a loan with him upon a pledge, it is forbidden for him to go to her house and take the pledge unless she requests of him to go to her house to take the pledge [so it appears in my humble opinion, and his words in the Commentary on the Mishnah require great study, see there].

It is written, "You shall surely return the pledge to him when the sun sets," and this refers to a night garment. And it is written, "Until the sun sets you shall return it to him," and this refers to a day garment, which he returns to his hand until sunset and then goes back and takes it. From here the sages said: whether one who takes a pledge from his fellow through a beit din, or one who took a pledge by his own hand through force or with the consent of the borrower—if he is a poor man and he took as a pledge an object that he needs, it is a positive commandment to return the pledge to him at the time that he needs it. He returns the pillow to him at night in order to sleep on it, and the plow during the day in order to do his work. And even though it is not a vessel for preparing food, nevertheless, since he needs the vessel to do work with it to sustain his life or for his use, he must return it at the time he needs it [Sma]. And at the time that the vessel or the pillow is in the hand of the lender, it is forbidden for him to use it [Shach].

And so too, a messenger of the beit din who comes to take a mashkon shall not take as a mashkon items that it is impossible to give as a mashkon, such as the garment upon him, or a vessel he eats with, and similar to these. And he leaves him a bed to sit upon, and a bed and bedding fit for him to sleep upon; and if he was a poor man, a bed and a mat to sleep upon. And everything found in his possession except for these, he may take as a mashkon when he does not enter his house but rather finds them outside his house, as has been explained. And these things that were explained, that he is not permitted to take as a mashkon—objects that are essential to him—this is according to the former time when it was their way that every person had two beds, for sitting and for sleeping. And so too, one must leave over in every place and at every time according to the custom. And just as if he took a mashkon himself he must return to him a day-vessel by day and a night-vessel by night, so too is the law regarding a messenger of the beit din. And so too, he returns to him tools of craft by day. And so too, if he took from him two vessels as a mashkon, a day-vessel and a night-vessel, and the debtor needs both of them, he returns to him by day the day-vessel and keeps with him the night-vessel, and at night he returns to him the night-vessel and takes from him the day-vessel. And so too every day and every night, whether he took the mashkon himself or whether by means of a messenger of the beit din.

Until when shall the lender keep the mashkon with him? If it is of the items that do not involve the mitzvah of returning the pledge, such as utensils and objects that he does not need, the lender leaves them with him for up to thirty days. And if the borrower does not redeem it within thirty days, the lender sells it in beit din according to the assessment of beit din. But if they are of the items that involve the mitzvah of returning, he is obligated to return and take from him forever; since the returning of the pledge is a mitzvah in its own right, it has no time at which it is nullified, and he can never sell it since he took it as a mashkon. And what is his remedy? When the lender returns a daytime utensil to him, he should return it to him on the condition of not receiving it back from him at night as a mashkon. And likewise, when he returns the pillow to the borrower at night, he should not return it on the condition of receiving it during the day as a mashkon; rather, he returns the pillow to him so that it will be with the borrower during the day as well, and the plow will be with him during the night as well. And automatically, the law of mashkon and the returning of the pledge are nullified from this, and the lender comes to beit din, and they collect his debt for him and arrange it, as will be explained.

And one should not say that according to what we have explained, that the mitzvah of returning the pledge applies forever, if so, what benefit does the mashkon provide him? For in truth, thus the sages said: that it benefits him so that the shevi'it shall not cancel it, as the object is considered belonging to the lender; and also, the mashkon does not become movable property in the possession of the borrower's sons such that we would say that the movable property of orphans is not encumbered to a creditor according to the law of the Gemara, as will be explained in siman 107. Rather, regarding these movable properties, when the borrower dies, he withholds them for himself. And even if the borrower died at the time the mashkon was with him—for example, if it was a daytime utensil and he died during the day, or a nighttime utensil and he died during the night—he seizes the mashkon from his sons and does not return it to them further.

The mitzvah of returning the pledge when the debtor needs this object, as has been explained, applies even when the debtor is wealthy in lands; for when he has no movable property except these vessels that he needs for his work or to sleep upon, one must return them to him, and the mitzvah of returning the pledge applies to them. However, when he has other movable property like those he pledged, such that he does not need the pledges, even if he is not wealthy, one does not need to return them to him, and the mitzvah of returning the pledge does not apply to them. And it appears to me that the mitzvah of returning the pledge applies only to an object needed by him or his wife, who is considered like his own body, and not to an object that his son needs, even though he is supported at his table; but regarding what is needed for his small children, it applies [so it appears to me].

When the lender returns the pledge, he must be careful to return it to him before witnesses and to warn the borrower that he should also not return it to him except before witnesses. For if not so, the borrower would be believed to say "I returned it" or "I paid" with a migo of "I returned it." But now, he is not believed to say "I paid" even when the mashkon is in his possession; for since the lender returned the mashkon to him before witnesses as a return of the pledge, it is as if the lender is in possession of it. However, within its time, he need not be careful in this, for within its time he is not believed to say "I paid" with a migo of "I returned it," as it would be a migo in the place of a chazakah. And there are those who disagree, that even within its time he is believed with this migo [Shach], for the burden of proof is on the claimant, and it was explained in siman 78, see there.

The commandment of returning the pledge is a positive commandment whose reward is written alongside it, as it is written: "and he shall bless you, and it shall be righteousness for you before Hashem your G-d." And regarding any positive commandment whose reward is written alongside it, the beit din of below is not commanded to compel its observance, for the Torah specified its reward to say that if you do not fulfill it, this is the punishment—that one will not receive this reward [Rashi, Chullin 110b]. Nevertheless, if the beit din wishes to compel him, the authority is in their hands. And when the lender returns the pledge, he must be careful to return it to him before witnesses, as was written in the previous section. And the law of returning the pledge applies only when he took the pledge not at the time of his lending; however, in the case of one who lends upon a pledge, there is no requirement to return the pledge. Similarly, vessels used for preparing food and a pledge from a widow are not forbidden except when not at the time of the lending, but according to the opinion of the Rambam, of blessed memory, it is forbidden even at the time of the lending, as we explained his words in section 7 and section 14; see there.

This rule that a creditor is forbidden from entering the house of the debtor to take a mashkon applies only to a creditor from a loan, but not from a debt of wages, whether for his own labor or the labor of his animal or his vessels, or if he owes him rent for a house—it is permitted to take a mashkon from him without the authorization of a beit din and to enter his house to take a mashkon. So too regarding a guarantor, the lender may enter his house to take a mashkon. And thus our sages, of blessed memory, expounded from that which is written, "You shall not go into his house to fetch his mashkon"—into his house you may not enter, but you may enter the house of a guarantor or the house of your hirer, unless he is a guarantor-kablan, for then his law is like that of a debtor. And so too regarding theft or the value of theft when the object is not present [Shach], and so too regarding a shop debt, a deposit, and the like. And regarding an iska, since it is half loan and half deposit, it is permitted for him to take a mashkon for the half that is a deposit [it appears to me]. And all of these, if he fixed them upon him as a loan, they become like a loan and it is forbidden. And what constitutes fixing a loan has been explained in siman 67. And all these matters are a decree of the Torah which is higher than human intellect, for even the laws of the Torah are like statutes. Therefore, it is written throughout the Torah "statutes and laws" together, because even the laws are among the heard commandments, as it is written, "And it shall come to pass, because you hearken to these laws." And so too it is written, "He declares His words to Jacob, His statutes and His laws to Israel. He has not dealt so with any nation; and as for His laws, they have not known them." And the meaning is: even laws that the children of Noah were commanded regarding, He did not inform them with clear knowledge, for they were only commanded to judge according to human intellect and not according to Divine Torah.

Some say that regarding the prohibition to take utensils used for preparing food as a mashkon, it is prohibited with all of them, for regarding this a limitation was not written as was written regarding entering the house of the debtor; and likewise, regarding taking the utensil of a widow as a chaval, the prohibition applies to all of them [Urim VeTummim].

A treasurer of the hekdesh or of tzedakah from whom one borrowed, and he took a pledge not at the time of the loan, is not included in the return of the pledge, as it is said: "And it shall be tzedakah for you," etc., when you return the pledge; this excludes hekdesh, which does not require tzedakah, for hekdesh is the essence of tzedakah. And some say that nevertheless, regarding vessels for preparing food and the vessels of a widow, it applies even to them. Therefore, according to this opinion, the community that seizes as a pledge vessels for preparing food and those of a widow violates a negative commandment and must be careful in this. [ibid.]

According to what has been explained, that it is forbidden for the lender to enter the house of the borrower to take a mashkon from him, and also the messenger of the beit din is forbidden from entering his house, but rather only when he finds him outside, a great question must be asked: for if so, if the borrower is wicked and a master of schemes and guards himself from taking anything outside of his house, will the lender lose his money? And you have no greater "locking of the door" than this. Therefore, there are some of our teachers who said that this prohibition, that the messenger of the beit din should not enter the house of the borrower, is only when it is possible for the lender to be paid from him in another manner, from real estate or from movable property. But if it is impossible for him to collect in another manner, and the lender says perhaps he has money or movable property, they enter his house and search for everything found with him; and if it is impossible to do this through a messenger of the beit din, they do it even through a messenger of the secular courts [the Rif in a responsum and the Ramah, cited in the Tur]. And there are some of the great authorities who forbid doing so [Ba'al HaTerumot there]. And there are some of our teachers who said that what the Torah forbade regarding entering the house of the borrower is only when the lender's intention is not to be paid now by the borrower, but rather he wants to be secure in his money and that they should take a mashkon from him, such as when the time for payment has not yet arrived and the borrower is squandering [Urim VeTumim] and he fears that there will not remain enough for his debt; or even if the time for payment has arrived, but he is not pressing him to pay now, but only that he should be secure in his money and his desire is to take a mashkon from him—in this the Torah forbade, as it is written: "You shall not go into his house to take his mashkon," for this is a mashkon and not a payment. But if the time for payment has arrived and the lender comes to the beit din so that they should collect his debt for him, and the borrower does not want to pay, and he is presumed to have that with which to pay but is smuggling and hiding his assets, the messenger of the beit din enters his house and takes everything found and they pay this one his debt, and they arrange for him as will be explained [Rabbeinu Tam and the Rosh and the Tur], for we compel the payment of a debt. And with this opinion our teachers, the authors of the Shulchan Aruch, agreed: that when he has the means and does not want to pay, the beit din imprisons him and compels him to pay. But if he has nothing with which to pay, we do not compel him to hire himself out nor to perform labor if he was not a craftsman until now [it appears to me] in order to pay his debts, for the lender did not lend to him with this intention, and how could the beit din compel him to this? And even if he stipulated upon himself that the lender should have the authority to seize his person and wrote this to him in the deed, it is of no effect, and he can neither imprison him in a house of prisoners nor enslave him. And a person himself cannot enslave himself to this, as it is written: "For the children of Israel are servants to Me," and not servants to servants. And if he stipulated with him that he should hire himself out and perform his labor, it depends on the dispute explained in Even HaEzer siman 73 regarding whether a man is obligated to hire himself out to provide for his wife [Urim VeTumim]. And if he swore regarding all of these, he is obligated to fulfill them because of the oath; and the same applies if he gave a handshake, for a handshake has the law of an oath.

According to what has been explained, when he comes to collect his debt and not to take a mashkon, none of the laws of returning the pledge that were explained apply; rather, the beit din performs a sidur for him. And how is the sidur performed? The beit din says to the borrower: "Bring all the money and all the movable property that you have to the beit din, as well as all lands, all work tools, and all vessels for food preparation, and do not leave anything for yourself." And from this, the beit din gives him sustenance for thirty days. The sustenance shall be neither like a wealthy person nor like a poor person, but like an average person in his city. Even if he previously ate like a poor person, they give to him now like an average person, since the sustenance is for him alone. But if he previously ate like a wealthy person, they give to him even now like a wealthy person [as it appears from Ketubot 67b]. This is not similar to clothing, which will be explained, because the suffering of hunger is greater than that of clothing. And they give him clothing for twelve months as is appropriate for him. Even if he previously wore silk garments or a golden turban or other expensive items that most people do not wear, they remove them from him and give him average clothing. They give him a bed to sit upon, and according to the custom of our times, they give him a chair, a table, a bed to sleep on, pillows, bolsters, and bedding according to his status. If he was previously poor and was not accustomed to pillows, bolsters, and bedding, they give him a bed and a mat to sleep on. And all these things, whether sustenance or clothing, are given only to him alone and not to his wife and children, even though they are minors for whose sustenance he is liable, for there is no obligation upon the lender to sustain them, and they are like all the poor of Israel. That which they give to him for himself is a decree of the Torah, as we derive from arachin, for it is written there: "But if he be too poor for your valuation, then he shall be set before the kohen, etc." and this "from your valuation" [m'erkecha] is superfluous, and the sages of blessed memory received that this is the meaning: that if he has nothing besides the valuation that he owes, you shall give him from the valuation to sustain his life, as has been explained. And it is written "he" to exclude his wife and his offspring [Arachin end of ch. 6]. And they give him his sandals and his tefillin. However, books are taken from him, even a Sefer Torah and even if he is a talmid chacham whose Torah is his profession, for they too are included in the assets from which a creditor collects. But tefillin are a commandment of his body, and it is forbidden for him to be without tefillin. Also, the tallit is not taken from him [it appears to me]. Seats in the synagogue are like other assets, and they are sold for the repayment of debts. However, if there will be great humiliation for him when he is removed from his place in the synagogue, it seems to me that one should not compel him to sell it; and the same applies to any such case where the humiliation would be greatly increased, one should not compel him to sell. And houses and lands, even the house in which he dwells and the land that he works, are sold for the repayment of debt.

If he was a craftsman, they give him two tools of each and every type; for example, if he was a carpenter, they give him two adzes and two saws. If he had many of one type and of another type he only has one tool, they give him two from the many and the one that he has from the other type, and they do not complete for him the deficiency from the many. Even though at the time when he had many of the one type he would lend them to another craftsman and would borrow from him that which he lacked, and now he will have nothing to lend and they will not lend to him either, nevertheless, they do not add for him from that which he does not have. But if he was a farmer or a donkey driver, they do not give him his pair of oxen nor his donkey, and similarly if he was a sailor, they do not give him his ship, even though his livelihood is only from them, because they are property and not tools of a craft, and they are sold with the rest of the movable property in beit din and given to the creditor. And similarly, other types of merchandise are sold even though his livelihood is only from this.

That which has been explained, that his wife has no maintenance, it is unnecessary to say that one does not fix maintenance for her for the future, but even if she seized maintenance for the future from her husband's property—for example, if her husband went to distant places and she seized from his property to maintain herself from them for the future [Taz]—we remove it from her hand and give it to the creditor. For a wife has no maintenance, neither from real property nor from movable property, until he pays his creditors, even if she was prior. And even according to that which we establish that from the Torah he is obligated in his wife's maintenance, nevertheless, he only has the ability to give her maintenance when he has his own and not that of others. And even if her husband went to a country across the sea and she borrowed with a document and ate, even though the loan for her maintenance preceded the loan of the holder of the document, the loan for maintenance is not collected until the holder of the document is paid first. For even though she borrowed with a document, her creditor is no better than she herself, and she does not have the status of a creditor with a document against her husband, only the status of a creditor by oral agreement. And the loan with a document is prior to collect from real property before her maintenance, for due to the "tikkun of the world," we do not remove from encumbered properties for maintenance, and a document is like encumbered properties [Urim VeTumim]. But regarding movable property, the hand of both debts is equal and they shall divide, for there is no law of priority in movable property, as will be explained in siman 104. And so too, if the creditor is by oral agreement and she borrowed for the sake of her maintenance by oral agreement or with a document, whichever of them comes to collect first is prior. And if both came as one, they divide. And according to what will be explained there, that an earlier oral loan precedes a later one, if so, whoever is earlier is prior to collect from real property, and in movable property they divide. And from the money of her dowry, she may withhold for maintenance even for the future and for a long period of time.

Our teacher, the Rema, wrote: If one was indebted to a koti and they sued him in their courts, and the wife came with her ketubah and they removed the creditor because of the wife—for such is their law, to collect the wife's dowry first—and afterward an Israelite lender came to claim his debt and to extract from the wife what she collected in their courts, the law is with the lender, for the ketubah and the dowry were not given to be collected during [the husband's] lifetime, as written in Even HaEzer siman 53. Thus far his words. And there is one who says that this is specifically if the debt of the Israelite preceded the debt of the koti, and if both had come to beit din they would have collected for the Israelite first, and therefore he extracts from the wife since in our laws he precedes the koti and the wife. But if the debt of the koti preceded the debt of the Israelite, the Israelite does not extract from the wife, for even if they had come previously to beit din they would have collected for the koti first, and the Israelite lost nothing by them collecting for the wife [Urim VeTumim], and such is the primary ruling. And similarly, if by the laws of Israel the Israelite and the koti would have divided, he collects half from the wife [it appears to me].

A creditor does not collect from what the debtor has already given to his wife and his children, whether vessels or jewelry, for giving is like selling, and a creditor does not collect from movable property that was sold, even when the debtor mortgaged movable property incidental to landed property and wrote for him "what I shall acquire," as written in siman 60. Therefore, regarding houses and lands that he gave to his wife and his children after the loan, he collects from them, but not from movable property. And so our Sages, of blessed memory, said: A creditor does not collect from the clothing of the wife and children of the debtor, nor from dyed garments that he dyed for their sake, even though they have not yet worn them, for they acquired them through the dyeing that he dyed for their sake, even if he did not purchase them for their sake. And some require that the purchase also must be for their sake [Ketzot HaChoshen], but the primary view is like the first opinion, for so it implies in the Gemara [Bava Kamma 112b: "Who informed him," etc.]. Nor from new sandals that he bought for their sake, because they acquired them through his purchase for their sake even though they have not yet worn them; nor from books that he bought for his children to study from; rather, behold these are theirs. And through what did they acquire them? Because we say that the husband is like an agent and the agent of his children, and the dyer or the shoemaker transferred ownership to them. Furthermore, since the arrangement for a creditor is derived from valuations, as written in section 26, and there certainly his intent was not, when he consecrated or valued himself, regarding these things that belong to the wife and the children, and it becomes as if he transferred all these things to them prior to the valuation [see there], and the same applies to a creditor. And specifically regarding these things which are necessities for a person do we say that presumably it is as if he transferred them to them as a complete gift; but silver vessels, gold vessels, precious stones, and pearls—a creditor collects from them even though the wife and children used them, for there is no proof that he transferred such expensive things to them, and he only gave them for use alone and they are still his, unless it is clearly known that he gave them as a complete gift, for then the creditor does not collect from them. And there is one who says that the husband is believed to say that he gave them as a complete gift [Urim VeTumim], and it appears that he is only believed before the creditor sought to collect them, but not afterward. And regarding Sabbath and Festival garments, there is a dispute whether they are similar to weekday garments or to silver and gold vessels. And it appears to me, according to the custom of our region, that they are similar to weekday garments, for most people transfer the garments, even the most expensive ones, to their wives and their sons and their daughters absolutely. And so too the jewelry that she wears on her body, such as nose-rings, rings, earrings, and pearls on her neck, he transfers to his wife as a complete gift, and when he bought them for her sake, it is as if he transferred them to her as a complete gift, and a creditor does not collect from them even after the death of the husband since they are hers and her children's [so it appears to me, unlike the Sha'ar Mishpat].

From everything that the woman brought in to her husband, a creditor does not collect from them, whether they are nikhsei melug or nikhsei tzon barzel. Likewise, from that which the husband allotted to her at the time of marriage—garments, silver vessels, precious stones, and pearls—the creditor has no right to collect from them. If the items she brought in to him or that he allotted to her are known, he does not collect from them. If it is not known, she is believed with an oath regarding garments and jewelry that it is the way of a woman to bring in to her husband or that the husband designated for her according to their value and status; regarding more than this, she is not believed with an oath, but only by way of witnesses.

Money of a dowry that she brought in to him, a creditor may collect from them because money is given for expenditure and immediately they are in his possession. And some say that nevertheless, if the dowry is still in her possession or in her father's possession or in the hand of a trustee, it appears to me that a creditor does not collect from them, for dowry money is not considered completely his unless it has come into his possession. And even if the husband was taken captive and they ransomed him, they do not collect from this nor from anything that has been explained as belonging to her. And even when her dowry money has come into his possession such that a creditor may collect from them, nevertheless, if she seized from this money for her future sustenance, they do not take it from her, for in this her power is superior.

Lands and houses that are recorded in the name of the woman prior to the time of the loan, the creditor has no portion in them because they belong to the woman. However, at the end of siman 60 we explained that in this time the judges must investigate and inquire well into this, for there is no proof from the fact that they are recorded in her name. And regarding the matter of the arrangement for a creditor, there is no difference between land and movable property, for if he has only lands, they also leave for him for his needs food and clothing and all the things that have been explained:

If he stipulated with him that they shall not arrange for him regarding this debt, his stipulation is valid. However, if he said, "on condition that there shall not be the law of arrangement regarding this debt," it is not effective, for he is stipulating against that which is written in the Torah, and his stipulation is void. But when he said that they shall not arrange for him, this is not like stipulating against that which is written in the Torah; rather, the stipulation is upon the debtor that he shall not request the law of arrangement. This is like "on condition that you do not release me in the shemittah year," where his stipulation is valid, as I wrote in siman 67. And when he said that there shall not be the law of arrangement in it, behold, whether he wants it or not, there is a law of arrangement, and it is like "on condition that the shemittah year does not release it," for whether he wants it or not, it releases it, as I wrote there. And that which the debtor liened all his properties to him, there is no stipulation in this to cancel the arrangement, such that we would say since he liened all his properties for the debt, he has not left anything for himself; for certainly his intent is only regarding properties that are fit for him according to the Torah, and it is not effective until he explicitly mentions the stipulation of arrangement. And even if he wrote to him to collect "from the cloak upon my shoulders," the intention is only to strip him of the expensive garment and sell it, and to clothe him in a garment fit for him. And if he stipulated with him that he may take as a mashkon after the loan utensils used for food preparation, his stipulation is valid [it appears to me]. And so too regarding a mashkon from a widow. But according to the opinion of the Rambam, that even at the time of the loan it is forbidden, it appears that his stipulation is not effective. See what I wrote in section 14.

There is one who says that we do not arrange for a debt that is not by way of a loan, such as his wages, and the rent of a house or an animal and the like, unless he established them against himself as a loan. And similarly when one comes to collect from a guarantor who is not a kablan, just as several matters explained in this siman do not apply to them, such as entering into his house, as has been explained. And some say that even in these cases we arrange. And according to the first opinion, the mitzvah of returning the pledge also does not apply to them, as it was only stated regarding a loan. And the reason for the latter opinion is that since this is his livelihood and his necessity, one should not distinguish between one debt and another [and see in the Levush]. And this rule that we arrange applies specifically when he did not swear to pay; but if he swore to pay, we do not arrange for him because of his oath, and he himself is obligated to sell everything he has, even his shirt and his belt, to pay his creditor, and he shall wallow in ashes so as not to transgress his oath. And he is not called "under duress" such that he would be exempt from the oath as long as he has something to sell. And a tekiat kaf has the law of an oath, as written in siman 81. And there are those who disagree on this and hold that the oath only takes effect regarding that which he is obligated to pay by law [Rivash]. And our teachers, the authors of the Shulchan Aruch, brought only the first opinion, and in siman 73 more was explained regarding this. And even according to the first opinion, the oath only takes effect when his situation has not changed from the time of his oath, or even if it changed but did not change through an uncommon duress, and he should have considered it, and the oath took effect; but if his situation changed through an uncommon duress, his oath did not take effect, as written in Yoreh Deah siman 232 [Netivot HaMishpat siman 34, subsection 3].