EXECUTION:(Redirected from SALE AND SEIZURE.)
Carrying into effect the decision of a court. The word also denotes the writ entrusting some officer of the law with the duty of carrying the judgment into effect. For the manner of carrying out a criminal sentence see Capital, Punishment and Stripes. The present article treats of the enforcement of judgments in civil cases; another part of the subject (dealing with cases in which the judgment is satisfied by a seizure of land) is treated under Appraisement. See also Bankruptcy; Foreign Attachment; Garnishment.Delay of Execution.
In the Shulḥan 'Aruk, Ḥoshen Mishpaṭ, the course of procedure is as follows: After judgment has been rendered for a debt, if the defendant is in the same town or within a short distance, no steps are taken to seize his property until he has been notified, so that he may have an opportunity to apply for a new trial. When the time for "opening the judgment" has expired, the court waits until another Monday, Thursday, and Monday have elapsed. On further default the court makes out a writ, known as "petiḤah" (lit. "opening"), by which the lesser ban is pronounced against the debtor for ninety days. On further default the court makes out a writ for seizure of the debtor's property—"adrakta"—and releases him from the ban; but if the debtor is within one (or two) day's journey, this is not done before a messenger has warned him. A man's property is but a surety for him (B. B. 174a), and the surety should not be the first attached. The ninety days are given (B. Ḳ. 112b) on the assumption that for thirty days the defendant will seek a loan, that in the next thirty days he will endeavor to sell the property, and that, if it be sold, the purchaser will need the last thirty days to secure the purchasemoney. When the judgment is not for money, but for the restitution of goods, or for the recovery of land, the delay of ninety days is inadmissible.Forms of Writ.
The adrakta as to "free property" (lands of the defendant not sold or encumbered) is written thus: "A B was adjudged to owe [a named sum] to C D, and not having paid voluntarily, we have written out this execution on his field described as follows" (then follow the appraisement and advertisement, as shown under Appraisement); whereupon the bond, if such has been the basis of the proceedings, is torn up.
If the debtor has several parcels of the same class of property, the choice as to which of them shall be "extended" to the creditor at an appraisement lies with him, not with the creditor (Ḥoshen Mishpaṭ, 102, 2).
When no free property can be found the adrakta is written thus: "A B was found to be in debt to C D by reason of a bond in the latter's hands. As A B did not pay voluntarily, and as we have not found any free property of his, and have already torn up the bond held by C D, and have given to said C D the power to search and seek out and lay hands on all property of A B that he can find, including all lands which A B has sold from [a named time] on, said C D has power to levy his claim on such property." A solemn oath is exacted from the creditor, following Ketubot 87a and Shebu'ot 45b, that he has not otherwise collected, nor released, nor sold his demand, in whole or in part; and, under a later institution, the debtor is called upon to take a rabbinical oath that he has no means of payment. So far the Ḥoshen Mishpaṭ, following a variant reading in the Talmud (B. B. 169a), has been followed. But in the reading used by Maimonides ("Yad," Malweh, xxii.), and followed in printed editions of the Talmud, the "ṭirpa" (tearing away) document comes first, and the adrakta afterward, the latter reciting the tearing up of the former.
The "iggeret shuma" (letter of appraisement), by which the land is turned over to the creditor or to a purchaser at execution, recites the tearing up of the last preceding document.Case of Insolvent Debtor.
The debtor can avoid the pronouncement of the ban and other proceedings by coming forward and surrendering all his property, taking out only his exemptions. But under an institution of the Geonim he can be compelled to take a solemn oath to the effect that he has nothing beyond the property exempted, that he has nothing concealed in the hands of others, and that he has not given anything away with the understanding that it will be returned to him; and he takes an oath that he will apply his future earnings, beyond his simple wants, to the discharge of the debt (Ḥoshen Mishpaṭ, 91). The creditor has also the right to demand the proclamation of the ban against all who know, and do not inform him, of any assets belonging to the debtor (for instance, money in the hands of Gentiles; ib. 100, 1, on geonic authority). When the debtor is known to be poor and honest, and the judge has good reason to believe that the creditor wishes to humiliate him, or to bring pressure to bear upon him to make him surrender his wife's property or borrow the money at heavy interest from Gentiles, the court should not exact the oath (ib. 99, 4).
In passing from the stay of judgment to levies on land the writer has followed the Talmud and the codes. But in practise a judgment was ordinarily satisfied with very little formality out of the debtor's goods and chattels, moneys and bonds, and this before levying either on "free" or on "subject" lands. Money found by the messenger of the courtwould be turned over at once to the creditor toward payment of the judgment; goods would be sold without appraisement and the proceeds applied in like manner. Under the older law a man condemned for tort might insist that the creditor after judgment should pay himself out of the debtor's lands; for the Torah says, "With the best of his vineyard . . . he shall make restitution." But in the later practise, and for ordinary debts, the lender may refuse to levy on lands at all, preferring to wait till the debtor should find the money (ib. 101, 4). Bonds for the payment of money may be taken in execution, but they are not sold; they are appraised according to the solvency of the obligors and according to the character of their lands, and turned over to the creditor at such appraisement (ib. 5, based only on authorities later than the Talmud).
The presumption prevails that all goods found on the debtor's premises are his. But when third parties claim them against the execution creditor, this presumption can be overcome by witnesses, but only when the goods are of the kind it is customary to lend or hire. When the debtor is a factor engaged in selling goods such as are found on his premises, there is no longer a presumption that the goods are his (ib. 99, 2; no mode of trial of the right of property in the goods is indicated).
- Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 97-105;
- Maimonides, Yad, Malweh;
- Bloch, Civil-Process Ordnung, s.v. Executions-Verfahren;
- Judah ben Barzilai, Sefer ha-Sheṭarot.