14-5769: Mitzvah N-52

Talmidav Shel Aharon
14-5769: Mitzvah N-52
June 14, 2009

Negative Mitzvah 52 - This is a negative commandment: Do not demand of a borrower to pay his debt when you know that he does not have the means to pay.

Hafetz Hayim: Scripture says, “You shall not be to him as a collector” (Exodus 22:24). It is forbidden for the lender to pass by before the borrower when he knows that the other has not the means to pay, so that he should not put him to shame. Yet just as a lender is forbidden to make demands, so is the borrower forbidden to suppress the money due his fellow man, to tell him, “Go and come back,” when he has it. This is a prohibition from the words of the later parts of Scripture; for it states, “Do not say to your fellow ‘Go and come again, and tomorrow I will give’ when you have it with you.” (Proverbs 3:28) It is likewise forbidden for the borrower to spend the borrowed money needlessly until he is unable to repay it; he is called wicked, as Scripture says, “The wicked man borrows and does not pay.” (Psalms 37:21) This is in effect everywhere, at every time for both men and women.

The world of lenders and borrowers can be tough to negotiate. On the one hand the one who lends money is helping his fellow human being negotiate in a difficult time for his business or helping the borrower to take advantage of an important business opportunity. One is not required to lend money so the lender, it seems, should be protected from those who would not repay the loan.
On the other hand the borrower may be poor and defenseless against the demands of the lender. The lender stands to make money from the interest on the loan and the sooner the lender gets his money back, the sooner he can lend it again to another and make more money. Sometimes the return on the borrower’s money takes time to arrive. Sometimes the opportunity fails. The lender is then a greedy ogre who does not really care about the borrower, but cares only for the money he can make.
Then again, perhaps the borrower is a scoundrel and a thief, taking advantage of the lender to get his hand on the money with no intention of ever paying the money back. The borrower may squander the money on an investment that has no chance of paying off or he could gamble it away, or spend it on some frivolous items knowing that the lender can’t ever make him pay.
So when this issue comes to court, the judges (or judges in a Jewish court) have to determine who is right and who is wrong. The multiple quotes from the Bible tell us that sometimes the lender and sometimes the borrower is the one who needs protection. The lender does have the right to his money back and the borrower must be protected from abuse by his creditors.
The law in most cases must follow the one who has followed all the right procedures. If the lender has written a valid promissory note and the borrower has signed it, then the borrower needs to pay what he owes. If the lender tries to swindle the borrower, then the court can invalidate the transaction and the lender loses his money. In any case, the court must find for the one who has the most valid claim.
This is why our Mitzvah is so important. It says that in spite of all claims, if the lender knows that the borrower can’t pay, he must not harass the borrower nor press him for the money. It is not a legal claim, but a moral practice. You can’t squeeze blood from a stone. If the money is not there, you just have to wait for it. But the Hafetz Hayim also notes that if the borrower attempts to take advantage of this limitation on the lender, the borrower could be in violation of other moral mitzvot that speak to this kind of fraud.
From a historical point of view, it is interesting to me that the lender laws are in the Torah and the anti-borrower verses are from Ketuvim, the later writings in the Bible. Proverbs and Psalms are not well known “legal” sections of the Bible. They stress the anecdotal and moral obligations that cannot always be legislated. It is easier in a law code to put the legal obligations on the lender, but the borrower has moral obligations too and apparently later writers saw an inequality in the law between lenders and borrowers and moved to speak to that issue.
Credit is what moves a capitalistic economy. Lenders and borrowers have legal and moral obligations. It is important for the governing body to take note of these necessary obligations and make sure that capital can flow with the law defending both the lenders and the borrowers equally. In a just society, it really can’t be any other way.