Wednesday, July 9, 2014

Compelling a debtor to swear to his poverty, Part 1


Preface: In order to encourage payment of debts, the sages enacted a rule permitting a creditor to demand that a debtor in default swear that he does not have the means to pay his debt. Regarding this, Rambam comments:

"Regarding one who is established as indigent and a proper person, acting in sincerity, and this is known clearly to the judge and to most people, and whose creditor then comes to demand that he take this oath. If it is established that the plaintiff is not going to be satisfied with the borrower's indigence, but will wish to pain him with this oath only to make him suffer and to humiliate him in public as a form of vengeance, or in order to goad him to borrow from a non-Jew or take his wife's assets to pay the debt and save himself from this oath, then it appears to me that a Gd-revering judge may not compel him to swear this oath. 

"If the plaintiff does compel this, he violates a biblical prohibition, 'You shall not be as a claimant.' Further, the judge should rebuke the plaintiff and chase him away, for he is nursing a grudge and acting on his personal whim.

"This oath was enacted only because of cunning people... This person is established as indigent, and not as someone cunning, and so one may not compel him to swear."

[to be continued]

(Maimonides, Mishneh Torah, Laws of Lender and Borrower 2:4)

Have a great day,

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