Parashat Ki Tetsei is a treasury of Jewish legal and ethical literature. I would guess that more pages of the Talmud are devoted to the discussion of verses from this parashah than any other in the Torah. Many basic principles of marriage law and of civil law find their sources here—generally in verses that are by no means self-explanatory but require extensive discussion, interpretation, and application. It is truly an embarrassment of riches that makes selection of a single topic very difficult.
Yet a choice needs to be made, and it will be two verses regarding laws of borrowing and lending:
“When you make a loan of any sort to your countryman, you must not enter his house to seize his pledge. You must remain outside, while the man to whom you made the loan brings the pledge out to you” (Deut. 24:10–11). Let us unpack these verses and their development in the Jewish legal tradition.
As in our own legal system, loans made under Jewish law frequently required that the borrower designate an item of value as security (Biblical Hebrew: ’avot, Rabbinic and modern Hebrew: mashkon). The accepted practice was that the designated security could remain in the possession of the borrower during the term of the loan. If the money owed was not repaid upon the designated date for repayment, the creditor had the right to take possession of the security. Frequently, the creditor would hold on to it for another fixed period to give the borrower the opportunity for repayment and restoration of the item. Biblical law provides that the creditor has no right to enter the borrower’s home to seize the pledge that he had the right to possess; the debtor himself must produce it.
Now for the problem. What if the borrower refuses to produce the security pledge? Claims that he has lost or sold it, or used it for another loan and it has already been taken, and that he has nothing of value to give over to the creditor? The biblical law explicitly prohibits the creditor from entering the house to investigate, but may a neutral emissary of the court enter the borrower’s domain. The law of the Talmud says “NO”: even the emissary of the court must remain outside. If the creditor believes that the borrower is lying, that he does indeed have property of value in his house or concealed somewhere else, the creditor has the burden of proof, in accordance with the general principle, ha-motsi me-havero ’alav ha-ra’ayah, “the burden of proof lies with whoever who seeks to remove property from the possession of his neighbour.”
It turned out that this legislation protected the rights of the borrower to such an extent that the result was a credit squeeze: potential borrowers who needed loans were simply unable to find people willing to lend money (of course without interest: see Deut. 23:20) under these circumstances. In order to free up the credit market, the heads of Babylonian academies in the post-Talmudic age enacted new legislation: the debtor who does not repay on time and claims he no longer the security pledge is to be subjected to a strict oath that he has no property concealed, and if he is seen with any property of value, the burden of proof shifts to the debtor that the property does not belong to him.
Yet the great legal scholar Moses Maimonides, whose Code of Jewish law records this fascinating development in response to changing economic circumstances, continues to write, “Even now, after the above regulation has been enacted, neither the creditor nor the court’s representative may enter the debtor’s house for the purpose of making distraint, since the enactment was not intended to abolish an essential rule of the Law. The debtor himself must bring out his movables and say “This is what I have” (Mishneh Torah, “Laws of Creditor and Debtor,” 2,2).
Here we have an example that illustrates the principles of Progressive Judaism. Despite the claims of many, Jewish law has not remained static and unchanging from the revelation at Mount Sinai to the present. It has developed and adapted in accordance with the wisdom of the sages in response to the needs of their times. Yet there must be limits to this change: basic, fundamental principles rooted in the Torah must still be honoured. The creditor and the emissary of the court must still remain outside the debtor’s home.
This may well be the source of the familiar principle in British law that “a man’s home is his castle.” The statement has been used by right-wing thinkers to defend some rather unappealing conclusions: that a man has the right within his home to beat his wife and his children without any interference from the law. But the biblical source shows that a very different meaning was intended: a defence of the dignity of even the most humble human being facing potentially humiliating circumstances. As formulated by William Pitt the Elder, “The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter” unless invited. And certainly not the creditor seeking repayment.
Rabbi Professor Marc Saperstein
August 2010
The views expressed in this D’var Torah do not necessarily reflect the position of Leo Baeck College.