The law against taking pledges for debt is drawn from the following passages: "No man shall take the mill or the upper millstone to pledge: for he taketh a man's life to pledge" (Deut. xxiv. 6, R. V.), "nor [shall he] take the widow's raiment to pledge" (ib. xxiv. 17, R. V.); "And if he be a poor man, thou shalt not sleep with his pledge: thou shalt surely restore to him," etc. (ib. xxiv. 12-13, R. V.); and Ex. xxii. 26 to like effect. The "taking to pledge" in these passages is understood as meaning a seizure to secure an overdue debt, not the taking of a pledge by consent at the time of a loan.In the Mishnah.
The oral law goes in its interpretation far beyond the letter of Scripture. The Mishnah says (B. M. ix. 13): "He who takes a mill to pledge breaks a negative command, and is guilty for each of two implements, the lower and the upper millstone [referring to Deut. xxiv. 6]; and this applies not only to a mill, but to any implement where with life-givingfood is made, for it is said, 'he taketh man's life to pledge.'" "One does not distrain the goods of a widow, whether she be poor or rich" (referring to ib. xxiv. 17). "He must return the pillow for the night, and the plow for the day; but if the debtor dies, they need not be returned to the heirs." The seizure in this way is of use to the creditor only to preserve his lien and to prevent the debt from running out in the year of release. Elsewhere ('Ar. vi. 3), on the occasion of an execution on behalf of the Sanctuary, but as a rule applicable to all debts, the Mishnah reserves to the debtor (1) food for thirty days; (2) clothing for a year, bed and bedding, sandals, and phylacteries; (3) to a mechanic his tools, such as adzes and saws, two of each kind, and, according to R. Eliezer also, to a farmer his yoke of beasts for the plow, and to a carrier his ass. But according to the prevailing opinion ('Ar. 23b), oxen and asses are not regarded as tools and are not exempt.
There is a discussion in the Talmud (Shab. 128a) as to what should be done in the case of a man heavily in debt and clothed in a robe worth 2,500 shekels. Should it be taken from him and clothing suited to his position given him? R. Ishmael answers, "All Israelites are the sons of kings, and no garment is above their rank." From these passages in Mishnah and Talmud the Shulḥan 'Aruk draws the following rules (Ḥoshen Mishpaṭ. 97):Further Development.
The officer of the court can not seize a hand-mill, but a water-mill is landed estate, and, without being actually seized, is treated like lands (see Appraisement). But if the creditor undertakes to remove parts of a water-mill, they become personalty and exempt. Pans and pots for cooking, a knife for slaughtering, and the like, are "implements for life-giving food." If such things are taken to pledge, the creditor must return them. According to R. Moses Isserles, such tools as barber's scissors are not exempt, nor are beasts of the plow. Scissors for cutting grass are clearly exempt, the grass being food. If a man has five hand-mills in use, none of them can be seized; but if only one is in use, the others are subject to seizure. Food itself is subject after the lawful allowance is set aside.
The officer can not seize a garment which the debtor has on his body, nor the vessel from which he is eating, and he must leave a couch or bench to sit upon, and a bed and mattress to sleep upon. Though seizing all the rest, he must return bed-clothes for the night, and tools for the daytime. It should be remembered that household goods are not sold, but simply held as security; other goods are sold after the lapse of thirty days. The obligation to return household goods holds even when the debtor is rich in landed estate.Exemptions from Pledge.
The officers who arrange satisfaction say to the debtor: "Bring all your movable property, not keeping back as much as one needle." From the whole they set aside for him provisions for thirty days (as a "middling man," says R. Moses Isserles, though he had lived like a poor man before) and clothes for twelve months, excepting, however, silken garments or a gold-embroidered turban; these things they take from him, and give him a sufficient supply of clothing better suited to his condition (contrary to R. Ishmael's view). They set aside also bed, mattress, and bedclothes, but these things are not set aside as exempt if they are the property of the wife and children, who simply keep what they have; for it is the husband's duty to support them. Sandals and phylacteries are exempt. A mechanic is allowed a double set of tools (as in the Mishnah); farm- or draft-animals are not set aside, nor the skipper's ship or boat, nor the professional scholar's books. The creditor has priority over the wife's right of maintenance, but he can not seize her or her children's clothing, nor the cloth which has been dyed for their use, nor the shoes brought for them, even though they have not been worn, nor books bought for the children's education. According to some opinions, the finer clothes for the wife's wear on Sabbaths and festivals are not exempt, and certainly garments containing gold or silver clasps, if bought by the husband for the wife, are subject to his debts. Where, however, they form part of her dowry they are exempt.
The allowances named above are to be set aside from either land or personalty. There is some dispute as to whether the allowance ("siddur") is to be set aside where the debt has been incurred for wages or for the hire of beasts, and not for money or property; also as to how far the debtor can waive the allowance when contracting a loan. But the debtor can not waive the exemption of "implements for life-giving food," as no stipulations can be made contrary to the provisions of the Torah. However, the Ḥoshen Mishpat closes the subject with a clause which might defeat all these humane provisions: if the debtor has sworn that he will pay the debt, he must give up even his last shirt—a clause which allows the parties to supersede by private arrangement the words of the Law.Waiving of Rights.
Maimonides, who treats of exemptions in the "Yad," Malweh, iii., says nothing about the debtor's oath as a means of nullifying clauses, either in written or in oral law, made in favor of poor debtors—an oath which the creditor might have forced from him as a condition of the loan. In fact, the creditor may not be allowed to accept such a suicidal fulfilment of the oath, for all standards acknowledge the Scriptural commandment "thou shalt not exact of thy brother" (Deut. xv. 3, Hebr.) as forbidding such harsh measures as well as such pressure as would drive the debtor to encroach on his wife's property.
The standards agree on the treatment of widow debtors. Maimonides (l.c.) says: "Whether a widow be rich or poor you can not take her goods in pledge, either at the time of the loan or by way of execution." This leaves really no way of enforcing a demand against a widow, unless she have real estate or outstanding loans, and the rule, if fully enforced, would have destroyed the credit of widow traders.
The Mishnah gives the measure of a debtor's exemptions in dealing with the demands of the treasurer of the Sanctuary, as shown under Estimate. Here the exemption is based on Lev. xxvii. 8 (Hebr.): "If thy brother bas come down" (become poor), etc. (see 'Ar. 24a).
In ancient Israel every loan was an act of charity. Therefore, if the creditor had taken a garment as a pledge he had to return it before nightfall, whether he had received payment or not (Ex. xxii. 26-27; Deut. xxiv. 13-14). The Talmud (B. M. 14b) explains this to include every article which can not be spared, so that the garment needed during the day must be returned before morning, and the garment needed at night must be returned before nightfall. Similarly, the law which prohibits the taking of a millstone as a pledge (Deut. xxiv. 6) is explained as applicable to every article which is as necessary as a millst one (Sifre, l.c. [ed. Friedmann, p. 123a]). Therefore the creditor should not make any use of the pledge; and he is responsible for its safety, just as every depositary is responsible for things held in trust (Ḥoshen Mishpaṭ, 72).Medieval Times.
The development of money-lending among the Jews as their almost exclusive occupation, which began in the twelfth century, was in all likelihood the consequence of the persecutions during the First Crusade (Höniger, "Zur Gesch. der Juden im Frühern Mittelalter," in "Zeitschrift für Gesch. der Juden in Deutschland," i. 65-97, 136-151); and the laws of pawnbroking became more and more detailed. This is shown by the fact that the charter granted by Henry IV. to the Jews of Speyer and Worms (1084-90) does not mention money-lending as an occupation of the Jews at all, while the charter of Frederick II. of Austria (1244) devotes nine of its thirty sections to the regulation of pawnbroking. This negative evidence is strengthened by the fact that in the ninth century the anti-Jewish writers Agobard and Amulo, who were so bitter in their denunciation of the Jews, are silent on this point. It remains evident, therefore, that loaning money on pledges, as money-lending in general, has been the occupation of the Jews only since the twelfth century, when St. Bernard of Clairvaux condemned the persecution of the Jews, saying that where there were no Jews, Christian usurers acted much worse (Migne, "Patrologia," clxxxii. 567; Aronius, "Regesten," p. 112; Grätz, "Gesch." vi. 166; Stobbe, "Die Juden in Deutschland," p. 107).
The law of Frederick II. of Austria expressly permits Jews to take any article as a pledge, without inquiring into the right of possession of the borrower; the exception to this is that bloody or wet garments may not be accepted, for in such a case suspicion of robbery is reasonable. On the "Privilegium Fridericianum" were based such later laws as that issued by Ottocar II. of Bohemia in 1254, the laws of Bela IV. of Hungary, of the dukes of Silesia and Poland, and a prohibition against lending money on sacred objects—Pope Gregory I. (590-604) and Charlemagne (806) had already declared that such objects should not be sold to Jews. A similar prohibition is found in a law issued by Philip August of France (1206). The rabbinical synods of the twelfth and thirteenth centuries adopted the same law, evidently because of the excuse which the discovery of church articles in a Jewish house would give for riots (Grätz, "Gesch." vi. 199). This principle is often repeated in legislations of the fourteenth and fifteenth centuries.Rabbinical Law.
In general, legislation concerning the Jews recognized the rabbinical law, even in dealings between Jews and Christians; so a Jew who had advanced money on a stolen article was entitled to recover the amount he had loaned on it, including interest, if he could swear that he did not know it had been stolen. The same held good with regard to stolen property which had been bought. This law is explained by the Talmud as necessitated by the needs of business life (; B. Ḳ. 115a; Ḥoshen Mishpaṭ, 357, 1). Various German laws demanded that the goods must have been delivered in daytime and without any secrecy ("unverhohlen und unverstohlen"). This recognition of the rabbinical law was fiercely condemned by the ecclesiastical authorities—e.g., by the Fourth Lateran Council (1215) and by various diocesan synods—as favoring the Jews at the expense of the Christians, who were compelled by law to return stolen property which they had bought, but without any prospect of indemnity. The "Privilegium Fridericianum" (§ 7), and a great many other laws, freed the Jewish pawnbroker from responsibility in case of the loss of the pledge by fire or robbery, or in any other way. The manner and fact of loss, however, had to be established by oath or through witnesses. This legal enactment is in conflict with the rabbinical law which considers the pawnbroker as a depositary (), i.e., responsible in case of death or theft (Ḥoshen Mishpaṭ, 72, 2).
While the state law in this case is more favorable to the pawnbroker than is the rabbinical law, in regard to the unredeemed pledge it is more favorable to the debtor. The rabbinical law declares that the pledge is forfeited if it is not redeemed on the day the payment falls due (Ḥoshen Mishpaṭ, 73, 13), though some authorities demand that the pledge shall not be sold until thirty days after payment falls due (ib. 3, 14). The "Privilegium Fridericianum" (§ 27), however, demanded that the pledge should be kept one year and one day. This stipulation was adopted in many places up to the fifteenth century.Special Regulations.
The privilege of lending money on pledges carried with it a certain obligation. Thus the Augsburg law declares that every Jewish money-lender is bound to advance money on a pledge to the extent of two-thirds of its value; while the city of Winterthur found it necessary to declare, in a charter of 1340, that a Jew is not liable to punishment if he is unable to lend a Christian the sum demanded (Stobbe, "Die Juden in Deutschland," pp. 113 et seq.). The Strasburg law of 1375 makes it the duty of the Jews to lend money on pledges to any citizen.
In the frequent anti-Jewish riots which occurred from the twelfth to the fifteenth century the mob sacking the houses of the Jews often took the pledges, and, as a rule, the king issued quitclaims after he had received part of the plunder. This was done very frequently by Charles IV., after the Black Death (1348-51). A typical instance is that of Nördlingen. Under these circumstances it is not to be wondered at that Jewish law at that period dealt with the Christian debtor as with anenemy in war. Thus medieval rabbis decided that if a non-Jew loaned to a Jew money on a pledge, and then lost the pledge, and a Jew found it, the latter should return it to the Jewish debtor (Ḥoshen Mishpaṭ, 72, 38). Similarly, the law permits a Jewish creditor to keep the pledge after the death of the Christian debtor, even where its value much exceeds the amount of the debt (ib. 72, 40).
The Jewish concern with pledges is especially connected with the Italian "monte di pietà," pawnshops established by the ecclesiastical authorities in the fifteenth century, in opposition to Jewish money-lenders and for charitable purposes. The name is found also in French ("mont de piété") and in Latin ("mons pietatis"; lit. "mountain of charity"); it Is supposed to have originated from the use of the word "monte" in the sense of "store" or "stock of goods," and especially with regard to banking, in the sense of a pile of coin."Monte di Pietà.
The great change of economic conditions in the fifteenth century in connection with the troubles in the Church created among the mendicant orders an eager desire to bring themselves into prominence. The Franciscans were especially active in promoting schemes for economic improvement. Barnabas of Terni began preaching against money-lenders in Perugia, and succeeded in forming a company of citizens who furnished money for a loan-bank which would lend at a lower rate of interest than that charged by the Jews. This first "mountain of piety" was founded in 1462, and others followed very soon in various cities of Italy; that in Orvicto, 1464, was sanctioned by Pope Sixtus IV. Especially active was the Franciscan Bernardinus of Feltre, who worked for the promotion of the popular pawnshops, chiefly in order to create an opportunity to attack the Jews. The Dominicans, jealous of the success of the Franciscans, opposed this movement, claiming that the exaction of even a low rate of interest was contrary to the Christian law; while the Lateran Council (1512-17) and the Council of Trent (1545-63), as well as various popes, declared for the Franciscans.
But in Rome, which was under the direct government of the pope, such institutions were not organized. While the operations of the loan-banks Interfered with the business of the Jews, they were not able to drive the Jews to abandon money-lending altogether; and therefore a special law was passed by the "signoria" of Venice, in 1547, prohibiting money-lending by Jews in Padua. In Istria, Jews who had lost their business opportunities elsewhere were privileged to conduct loan-banks. So in Pirano, in 1484, where a bank was founded by Moses Sacerdote and three others; it continued is operations until 1634, when a monte di pietà was established and their privilege was withdrawn. In Capo d'Istria, Jewish money-lenders were called upon when the monte di pietà had become bankrupt. In 1611 France introduced the system, but there it had no anti-Jewish purpose. Since the middle of the eighteenth century the restrictions against Jewish money-lenders in Italy have been removed.In Germany.
In the fifteenth century the business of the Jews consisted chiefly in pawnbroking, as Israel Isserlein states ("Terumat ha-Deshen," part i., No. 309). They dealt with all classes of people, even with princes and kings. King Rupert (1403) pawned his silver to Jews (Stobbe, l.c. p. 240); the empress Maria, widow of Maximilian II., pawned her silver to Mordecai Meisel (1578) for 2,000 florins ("Zeit. für Gesch. der Juden in Deutschland," ii. 175). From the fifteenth century on, however, the restriction of money-lending by Jews became the rule. In 1530 and 1544 respectively, the Reichstags of Augsburg and Speyer issued strict regulations in regard to excessive rates of interest and other abuses (See Josel of Rosheim). The Landesordnung for Bohemia, 1579, restricted the money-lending of the Jews to pawnbroking in order to exclude them from banking on a larger scale ("Zeit. für Gesch. der Juden in Deutschland," ii. 173).
The Judenstättigkeit of Frankfort-on-the-Main, 1614, limited the rate of interest for loans on pledges to 8 per cent; the same was done for Fulda in 1615 (ib. iii. 178). How precarious this business was even then is proved by Glückel von Hameln, who tells in her memoirs of an attempt to take a pledge from her father's shop by force. The danger in dealing with creditors of this class evidently induced some medieval rabbis to permit a pawnbroker to redeem a pledge for a creditor on the Sabbath (Oraḥ Ḥayyim, 325, 3).
With the development of the banking business through the court Jews in the seventeenth century, and the gradual concession of economic freedom, pawnbroking among the Jews became rare, and, in fact, in recent times, disreputable (see also Banking).
- Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 72-73;
- Zeitschrift für Gesch. der Juden in Deutschland, i. 65-97, 136-151;
- Stobbe, Die Juden in Deutschland Während des Mittelalters. pp. 112-131, Brunswick, 1866;
- Scherer, Die Rechtsverhältnisse der Juden in den Deutsch-Oesterreichischen Ländern, pp. 196-209, 211-216, Leipsic, 1901;
- Ceretti, Storia di Monti di Pietd, Padua, 1752;
- Ciscato, Gli Ebret in Padova, pp. 48-67, 245-247, Padua, 1901;
- Nuova Enciclopedia Italiana, s.v. Monte di Pietà (where further literature is quoted).