JUDAICA - Wisdom In Torah

112b), but there it is imposed on a debtor who has means and
pleads in court that the bond of indebtedness is a forgery; if,
after being given a respite in order to prove his plea, he fails to
appear in court, the ban will be imposed on him for 90 days
and thereafter an adrakhta issued on his assets. This drastic
innovation was not generally accepted as part of Jewish law. It
was rejected by Alfasi and Raviah as contrary to the law (their
statements quoted by way of the Mordecai in Baḥ ḥM 99:5)
and it is not mentioned at all by later posekim. Only in the 16th
and 17th centuries is it mentioned again – in various communal
takkanot – as the imposition of a ban for a period of three
days, thirty days, etc., with reference to a debtor pleading that
he has no means (see Elon, Ḥerut ha-Perat 44, n. 25).
A second development in the geonic period toward
more efficient debt collection was a takkanah providing for
the administration of the oath of ein li (“I have no means”) or
shevu’at ha-ḥashad (oath taken when “suspected” of having
means) to a debtor pleading a lack of means to repay his debt:
“After the redaction of the Gemara, when the early geonim
saw the swindlers increase in number and the door bolted
before a borrower, they regulated that a solemn oath – having
the stringency of biblical law – be taken from a borrower
to the effect that he has nothing beyond the assessment that
is made for him and that he has not concealed anything with
others and has given no returnable gifts; the oath shall include
that whatever he may earn or that may come into his hand or
possession, in any manner whatever, shall not be used at all to
feed or clothe either his wife or children or be given to anyone
as a gift, save that he shall take from it sustenance for 30 days
and raiment for 12 months – such as is due to him; neither
the sustenance of gluttons nor of the nobility nor the raiment
of high officials, but such as he has accustomed to – and the
remainder he shall give to his creditors, in due order of preference,
until the whole of his debt is collected” (Yad, Malveh,
2:2). Unlike the case of the ban imposed for 90 days, the pauper
was also subjected to this oath, but was later exempted
from it by Maimonides, on the grounds that the oath was designed
“to deal with swindlers and not with those generally
accepted to be paupers” (Yad, Malveh, 2:4). The administration
of this oath, as qualified by Maimonides, was accepted
by the posekim (Tur and Sh. Ar., ḥM 99:4).
A similar oath can be traced in the legal systems of various
European countries, commencing from the 12th century
onward; thus for example, in the Offenbarungseid of German
and Austrian law, the debtor is also committed to make over
all his future earnings to his creditor (see Elon, Ḥerut ha-
Perat 49, n. 52).
The underlying purport of the Jewish laws of execution
is to ensure the existence of an effective debt-collection procedure,
so as not to “bolt the door before a borrower,” while
maintaining adequate safeguards against the violation of a
debtor’s personal freedom and dignity. The pursuit of this
twofold objective has ensured that the laws of execution at all
times recognize a material distinction between a genuinely
impoverished debtor and a debtor of means seeking to evade
execution
fulfillment of his obligations towards the creditor, a distinction
lucidly enunciated in the statements of Maimonides already
cited.
[Menachem Elon]
In the State of Israel
The laws and proceedings for the execution of judgments in
the State of Israel in general, particularly with respect to the
imprisonment of debtors, were significantly changed by the
Supreme Court’s decision in the Perah case (HCJ 5304/92,
Perah v. Minister of Justice, 47(4) PD 715). This decision, written
by the deputy-president of the Court (Justice Menachem
Elon), relied on the position adopted by Jewish law regarding
imprisonment for the enforcement of debts. The Perah organization
had petitioned the court to nullify one of the regulations
that allowed for the excessively easy imprisonment of
debtors, without the debtor even having to be brought before
the head of the Execution of Judgments Office.
The decision begins by noting that “the central issue of
this complaint is the fundamental right of a person to freedom
and dignity in the context of imprisonment for debt.” In the
ruling, Justice Elon presents a detailed description of the position
of Jewish law and its development as attested by a broad
range of sources dealing with the execution of judgments in
general, and imprisonment for debt in particular, from the
biblical era through the contemporary period. In focusing on
the detailed process that lead to the Knesset enacting the Execution
of Judgments Law, he noted that support for the proposed
bill was based on principles of Jewish law that reject the
view that collection measures also serve as a punishment of
the debtor. Justice Elon also relied on the fact that the Basic
Law: Human Dignity and Liberty establishes the values of the
State of Israel as a Jewish and democratic state.
In wake of this decision, a number of amendments were
made to the Execution of Judgments Law, allowing imprisonment
for debt only in certain particular instances. (See also
the detailed discussion of the decision in the entry *Imprisonment
for Debt.)
The Negola decision (LCA 7700/95, Negola v. Hazan, 50
(1) PD 338) was another Supreme Court decision in which the
Court relied upon the “ancient social sources of Jewish law”
regarding the rules of execution of judgments. In that case, in
the framework of proceedings to enforce collection of a debt,
attachment proceedings were instituted for the sale of the petitioners/debtor’s
residential apartment, and an alternative arrangement
was established in accordance with the provisions
of the Execution of Judgments Law. These provisions require
that, prior to ordering the sale of a residential apartment, the
head of the Execution of Judgments Office must be shown that
“the debtor and his family members who live with him will
have a reasonable place to live, or that there is an alternative
arrangement for them.” Justice Strassbourg-Cohen’s decision
discusses the nature of such an “alternative arrangement,” and
analyzes in detail the criteria and the considerations for striking
a balance between the creditor’s right to collect his debt,
on the one hand, and the special personal circumstances of
ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 6 597