Fact-Checking the Torah -- Why a mortgage?

We’re talking about mortgaged land and we just found out that the bond for the mortgage controls what the bondholder can do with the land.  There are more details but you had no assignment this week because the details are in Mishnah and Gemara.

The bondholder takes on certain responsibilities that also apply to the owner.  He has to use weed control and if he doesn’t, the community does it and makes him pay them back.  He has to take into account what the neighbors are doing with their land.  If they have beehives, he can’t plant mustard because it will give the honey a bad taste.  I know from experience that bees love yellow flowers and mustard has yellow flowers.

There are also limits to what the landowner can do with the money, in a way.  If he committed a tort such as battery, he pays the damages that the court imposes by mortgaging his best land.

If he owes money to merchants, he mortgages his middling quality land, but he can only pay the creditors who show him a signed and sealed court document evidencing the debtor’s agreement to pay. 

If he has to pay his wife’s ketubbah, he mortgages his worst land.  Say his achuzah, the property handed down through the eldest sons since the Ingress to the Holy Land, is 45 acres.  If most of it is rocky or full of crevasses and can’t be farmed profitably, that is “worst land” and that is what he mortgages if he divorces his wife and has to pay her ketubbah.  He might wind up with say 5 acres of his best land, and until he pays off the mortgage that is the only land he can mortgage.

Land with no bonds on it is called b’ney chorin, the same phrase that applies to a man who is not bonded and therefore is eligible to serve as a witness in court.

Now let’s go back to the underage girl whose mother and brothers bond her out.  They might do this on the father’s death.  That way they are sure that she has food, clothing and shelter.  Then the sons can mortgage whatever land they have to and pay their father’s debts.  Next, the wife gets her ketubbah and the sons have to pay damages on some of her dowry (more on that later).  Then the sons can split what’s left as their inheritance. 

But in the meantime the court gets involved and rules that the bond on the girl is null and void.  At that point nobody can ever bond her out again, not even for theft.  She is now responsible for herself, disposes of the income from her work, and must keep her vows and oaths.

From last week’s lesson, I’m sure you see a hole in the system.  What if somebody tried to mortgage land in the 6^th year of the shemittah cycle?  Well, he couldn’t get much from it, that’s for sure, because the produce of the following year was free to all, the bondholder couldn’t sell it.  For cases of dire necessity, the rabbis set up the prozbul.  This meant that the bond was taken out for enough years to cover the necessary money, and it was deposited with the court (which only needs 3 people), for payment in full after the shemittah year.  In this way families were kept from going on public assistance when stuff happened, which it did thousands of years ago just as it does today.


There's no reading assignment for the next post because how Jewish courts operate is specified in Mishnah and Gemara.

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