JUDAICA - Wisdom In Torah

exempla of the rabbis
the creditors, on the other. Justice Tirkel added that the alternative
residence must also be appropriate in terms of the time
that the debtor is able to stay there. Accordingly, if the debtor
had been entitled to live his entire life in the apartment that
he owned, he is entitled to an alternative arrangement that assure
him a lifelong residence. This determination stems from
the interpretation of the law in light of its purpose – namely,
that it mandates the protection of the debtor’s basic living
needs, as expressed in the prohibition against attaching part
of a debtor’s salary, his clothing, beds, tools, etc. Judge Tirkel
pointed out that this arrangement is based on ancient principles
of social welfare within Jewish law: “No man shall take
the mill or the upper millstone to pledge; for he takes a man’s
life to pledge,” (Deut 24:6); and “And if he be a poor man, thou
shall not sleep with his pledge, you shall surely return him the
pledge when the sun goes down, that he may sleep in his garment”
(Deut 24:12–13), these being concepts that continued to
develop over generations. Justice Tal concurred with the opinions
of Justices Strassbourg-Cohen and Turkel, but added that
in certain cases, where “the debtor … lives in a house that he
had built for himself with the money of others,” the verse “he
who builds his house with unfairness and his upper chambers
with injustice” (Jer 22:13) is applicable and he is not entitled
to the same protection.
Extensive use of Jewish law was made in this regard in
a decision of the Petah Tikvah Magistrate’s Court regarding
the imposition of liens on a debtor’s assets. The Court relied
on the writings of the Rosh (Piskei Ha-Rosh, BK 1.5) and of
Rabbi Israel Isserlein (Terumat ha-Deshen, §305), from which
it emerged that, prior to imposing a temporary lien on assets
in order to prevent the debtor from hiding them, there
must also be proof of the grounds of the action, and it must
be shown that there is a likelihood that the defendant will attempt
to hide these assets. The reason is that the purpose of
imposing a lien on the assets is not to punish the defendant,
but to prevent a situation which would encumber enforcement
of the judgment (Maharshal, Yam Shel Shlomo, BK 1.20;
Civil Application 4804/02, NMC v. Ben Chalouche, Registrar
Zvi Weitzmann). The same Court also discussed the issue of
what situation is considered to be one that encumbers the
execution of judgment and concluded, on the basis of Jewish
legal sources (Sh. Ar., HM, 73.10; Shakh on Shulhan Arukh,
op.cit.; Maharshal, op. cit.), that, in order to obtain temporary
relief, it is necessary to prove an active attempt on the
part of the defendant to conceal his assets and to frustrate
the execution of a judgment, and it is not sufficient to prove
his inability to discharge the debt. (Civil Application 2264/04,
Rosenthal v. Shinterko).
Another decision handed down by the same court,
also dealing with liens, reviewed the developments in Jewish
law regarding the ability to enter a debtor’s house to collect
a debt, in accordance with the Perah decision, while taking
care to maintain the debtor’s dignity and not to harm
him. In light of this review, the Court examined the proper
balance between the defendant’s rights and the plaintiff ’s
rights, and the degree of harm that can legitimately be caused
to the defendant in order to secure the plaintiff ’s rights
(Civil Petition 2621/04, Shinterko v. Rosenthal, Judge Zvi
Weitzmann).
Regarding this matter, see also FF 24891/03, A.N. v. A.T.;
Civil Application 743/02 G.A. v. G.A., regarding an injunction
against leaving the country; Execution of Judgment File
17-09642-96-8 – re foreclosure on a secured asset.
Concerning the use of Jewish law, see also Civil Petition
18702/02 Polaski v. Galaxy Electronics (Haifa District
Court, Judge Yakovshvili), regarding an arrangement of the
debtor’s assets and a lien on sacred objects; and 3403/01 Ziva
v. Yaakov, 5761(1) PDM, 756 (Jerusalem District Court, Judge
Moshe Drori), regarding the execution of an act without a
signature of the creditor.)
[Menachem Elon (2nd ed.)]
Bibliography: M. Bloch, Die Civilprocess-Ordnung nach mosaiich-rabbinischen
Rechte (1882), 90–106; Gulak, Yesodei, 107–9; 4
(1922), 184–96; Gulak, Oẓar, 314–36; idem, Toledot ha-Mishpat be-Yisrael
bi-Tekufat ha-Talmud, I (1939) (Ha-Hiyyuv ve-Shi’budav), 118–40;
Herzog, Instit 1 (1936) 4f; 386; S.J. Zevin, in: Sinai, 3 (1938),55–71, 246;
ET, 5 (1953), 92–132; 9 (1959), 143–55; B. Cohen, in: Louis Ginsberg
Jubilee Volume (1945), 113–32, republished in his Jewish and Roman
Law (1966), 159–78; addenda ibid. 772–75. Add. Bibliography:
M. Elon, Kevod ha-Adam ve-Ḥeruto be-Darkei ha-Hoẓa’ah la-Po’al
(2000), idem, Ha-Mishpat ha-Ivri (1988), I:105, 194, 486, 515, 535,
601, 633; 2:885, 1284f; 3:1319, 1370f; idem, Jewish Law (1994), 1:117, 218;
2:591, 627, 651f, 744, 784; 3:1079, 1533f., 1576, 1635; ibid., Jewish Law
(Cases and Materials) (1999), 455–75; M. Elon and B. Lifshitz, Mafte’aḥ
ha-She’elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah
(1986), (1), 89–103; B. Lifshitz and E. Shohetman, Mafte’aḥ ha-She’elot
ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (1997),
61–67.
EXEMPLA OF THE RABBIS, a collection of more than 300
Hebrew stories – the largest collection of its kind compiled in
the Middle Ages – so entitled by M. Gaster, who discovered
them in manuscript and published them (1924). Most of the
stories, especially in the beginning of the book, are similar to,
or identical with, those in the talmudic-midrashic literature,
although in the latter part, there are some longer, more developed,
stories, not found in the Talmud or Midrash. While the
manuscript is undoubtedly of medieval times, Gaster maintains
that the collection itself is a very early one, predating the
Talmud. Furthermore, he tries to prove that for their stories
the talmudic sages did not use oral sources, but rather a narrative
Hebrew literature, of which the only extant specimen
is this collection. This he concludes on the basis of the organization
of the work in accordance with literary principles.
No proof, however, exists for Gaster’s conclusions. It is much
more logical to suppose that the compiler of the Exempla collected
stories from the talmudic-midrashic literature, adding
to them medieval stories, with which he became acquainted
through oral or written sources. All this material he organized
together according to strict literary principles. The existence
of two other medieval compilations of this sort –*Mi-
598 ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 6