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execution
Perat 180, no. 265). The trustee’s task was to collect and receive
all the debtor’s property – which thus became vested in him –
and to sell the same and distribute the proceeds amongst the
creditors; the takkanot prescribed a punishment of a year’s imprisonment
for a debtor who willfully squandered his property,
and could not pay his debts (Halpern, Pinkas Takk. 112,
128; Elon, Ḥerut ha-Perat 180–3).
Execution in the Absence of the Debtor
The scholars of the Talmud express conflicting opinions on the
question of levying payment on the debtor’s property when he
is absent and there is no reasonable prospect of reaching him.
One opinion is that in these circumstances, payment is not
levied, even if the creditor should take an oath that the debt
has not yet been paid; another opinion is that a debt is not recovered
in the debtor’s absence except with regard to a debt on
which interest is payable; third opinion is that payment is not
levied unless the debtor had faced trial and thereafter taken
flight; a further view is that payment is levied in the debtor’s
absence and the possibility that he may have paid the debt
and received a release from his bond is disregarded, in order
that “a person shall not take his neighbor’s money and then
go and sit abroad, which would cause the door to be bolted
before borrowers” (Ket. 88a, TJ, Ket. 9:9,33b, 8). Some of the
posekim follow the third of these opinions (Hai Gaon, quoted
in Sefer ha-Terumot, 15:1; Rabbenu Ḥananel, quoted by Alfasi,
Asheri, and in Tos. to Ket. 88a); the majority of the posekim,
however, hold the opinion that payment is levied in the debtor’s
absence, on both his land and chattels, after the creditor
has presented his bond of indebtedness and taken an oath
that the debt had not yet been paid (Alfasi and Asheri, Ket.
88a; Yad, Malveh, 13:1; Sh. Ar., ḥM 106:1). In the event that the
debtor goes abroad before the debt falls due for payment, some
scholars hold that by virtue of the presumption that no person
pays a debt before its due date, the creditor may levy payment
without taking the oath of non-payment – even though
the debt may meanwhile have fallen due – since the fact that
the creditor holds the bond of indebtedness obviates the fear
that the debtor may meanwhile have paid the debt through
an agent. Other scholars hold that in these circumstances the
creditor is required to take the prescribed oath just because
of the fear that the debtor may have paid the debt through an
agent (Sefer ah-Terumot, 15:1; Tur, ḥM 106:3).
At no time is payment levied in the debtor’s absence, unless
the latter cannot be reached by an agent in a return journey
lasting not more than 30 days (some scholars fix a longer
and others a shorter period); if the debtor is somewhere where
he can be reached in less than the stated period, the court will
dispatch an agent to notify the debtor of the proposed levy on
his assets. The expenses involved are paid by the creditor, but
these may be recovered in turn from the debtor (Yad, Malveh,
13:1 and ḥM 106:1); expenses incurred by the creditor for his
own benefit, such as those connected with the issue of a writ
of adrakhta, etc. are not recoverable from the debtor (Sma n.
2 and Siftei Kohen ḥM 106). Execution in the debtor’s absence
is conditional upon the prior fulfillment of three requirements
by the creditor: (1) probate of the bond of indebtedness held
by him; (2) proof that the debtor is abroad and is not available
to face trial; and (3) proof that the assets on which it is sought
to levy payment belong to the debtor (Malveh 13:2; ḥM 106:2).
In order to obviate the difficulties attending an execution in
the debtor’s absence, the creditor may request the court to restrain
the debtor from leaving the country unless he provides a
surety for the payment of the debt (Sh. Ar., ḥM 73:10; see also
Elon, Ḥerut ha-Perat 218, n. 409; PDR 2:65ff.).
Impoverished Debtors and the Plea of Ein li
“It is the law of the Torah that when the lender comes to recover
payment of the debt, and it is found that the borrower
has property, then an assessment [“arrangement”] for his vital
needs is made and the remainder is given to his creditor …;
if it is found that the debtor has no property, or that he only
has objects which fall within the assessment – the debtor is
allowed to go his way (and he is not imprisoned, neither is he
asked to produce evidence that he is a pauper, nor is an oath
taken from him in the manner that an idolator is adjudged,
as it is written: ‘you shall not be as a creditor unto him.’” (Yad,
Malveh, 2:1). This was the law as it prevailed until geonic times.
The advent of the geonic period was accompanied by material
changes in the economic life of Babylonian Jewry. Commerce,
extending to the North African and other countries, came increasingly
to replace agriculture and the crafts as the mainstay
of Jewish existence. Whereas formerly loans were taken
primarily for the borrower’s daily needs, they now came to be
employed mainly for profit-making purposes, and the growing
capital flow and development of external trade made it difficult
to keep a check on the assets of a debtor, all of which encouraged
the phenomenon of concealing assets. In the course
of time this led to the adoption of far-reaching changes in the
means of recovering a debt (see above; and also Imprisonment
for *Debt.). These changes only partially asserted themselves
in the geonic period, but two developments from this period
may be mentioned, both aimed at a more effective process of
debt recovery from a debtor pleading a lack of means.
One development was to place the debtor under a strict
ban for a predetermined period, as a means of compelling
payment. Thus it was decided by Hai Gaon, the first to mention
this practice, that because of the adoption of various
subterfuges by people of means seeking to evade payment of
their debts – including those falsely swearing to their lack of
means – any debtor pleading a lack of means to pay a debt
shall have the ban imposed on him for a period of 90 days,
during which time he is “severed” from Israel – so as to induce
the disclosure of his assets and payment of the debt. Upon
the expiry of this period he is made to take an oath that he
has no means (for the terms of the oath, see below). Only a
debtor who is reputed to be a pauper and known as such by
the people is exempt from the ban when pleading no means
of paying his debt (see A. Harkavy, Zikkaron la-Rishonim, no.
182). The ban for 90 days is also mentioned in the Talmud (BK
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