Siman 107

It has already been explained in siman 39 that lien is by Torah law, and by Torah law, whether it is a debt with a shtar or an oral debt, one collects from purchasers and from heirs. Only regarding purchasers did the sages institute, for the sake of the order of the world, not to collect an oral debt because it does not have a voice. However, regarding heirs, it remains according to Torah law to collect from them even an oral debt; and on the contrary, if they were not to collect an oral debt from heirs, it would be "locking the door before borrowers" [the Rif at the end of Bava Batra], for they would be afraid to lend orally lest he die, and it is not possible at every hour to write a shtar with witnesses. And regarding purchasers, he is not so concerned, for he trusts the borrower that he will not sell them, but life and death are not in his hands [it appears to me]. Therefore, it is a complete obligation upon the heirs to pay the debt of their testator, and we compel them in this just as we compel their testator. And aside from the debt incumbent upon them from the lien on properties, there is further upon children, when they inherit from their father, a positive commandment of honoring the father to pay his debts. In what case are these things said? When he left lands. But if he left only movables, the debt is not upon them to pay by Torah law, for the movables of orphans are not liened to a creditor, as the lender does not rely on movables and his lien is not upon them; therefore, when he died and the movables came into the possession of the heirs, and he did not lend to them, he does not collect from them [Rashi, Pesachim 31a]. However, the commandment of honor is incumbent upon them to pay from his movables, for it is a disgrace to their father that he should be a "wicked borrower who does not pay" while they inherit his money; therefore, they shall pay from the movables he left [Sma]. And as for why we do not compel them regarding this commandment, it is because its reward is stated alongside it, for regarding honoring the father it is written "length of days," and any commandment whose reward is stated alongside it, the earthly beit din is not cautioned over it, as I wrote in siman 97 regarding the returning of a collateral. And all this is according to the law of the Gemara. But the Geonim instituted that a creditor shall collect movables from heirs when their father left them to them. And the Rosh, of blessed memory, wrote that this is from the essence of Torah law in this time, for movables are like land for every matter; for in the early days when Israel was on its foundation, the essence of their business was only in land, and therefore all the liens of lenders were only on lands. But in these generations when we are not settled on lands, and in many places they do not allow us to buy lands, and all our business is in movables, all liens are by Torah law on the movables. Only regarding purchasers is it impossible to seize from them since there is no voice to their sale and the lenders do not rely on this for seizing from purchasers [Shach]. Therefore, nowadays we compel the heirs to pay the debts of their testator even an oral debt from the movables or money that their testator left, and even if the borrower acquired them after he borrowed and did not write "that which I shall acquire," because an heir stands in the place of his testator. And so too they are obligated to pay the debt of their testator from a loan that their testator had in the hands of others, whether they collected land from the borrowers or whether they collected money; for even though according to the law of the Gemara there is a distinction in this, that if they collected money he does not collect because this is movables, yet nowadays there is no distinction in this for the reason that was explained. And even though regarding a firstborn it is called a "potential" loan and he does not take a double portion in it as will be explained in siman 277, nevertheless a creditor collects from this; and not only that, but the creditor of the deceased can extract from the borrower of the deceased by way of the law of Rabbi Natan in siman 86. And if they inherited land and movables, and it is not specified in the shtar that he may collect movables whether in his life or in his death, and the heirs want to pay him with land and he specifically wants movables, the law is with the heirs; and even if he seized movables after death it is of no avail when they want to give to him [Shach], since by Torah law the movables of orphans are not liened at all. And in my humble opinion it appears that since according to the words of the Rosh nowadays land and movables are equal, their law is like the law of their testator, that he does not have the power to push him off to lands as I wrote in siman 101, and even if he did not seize, they are obligated to give him movables.

If the sons did not inherit anything from their father, they are not obligated to pay his debts, and even the mitzvah of kibbud is not applicable here, for kibbud is only from the father's assets, as is written in Yoreh Deah siman 240. And even though it was explained there that if the father does not have and the son does have, he is obligated to sustain him from his own, this is regarding his sustenance and not for the payment of his debts. However, as a measure of piety, when the son is wealthy and the father bears a sin for not having paid—such as if previously it was within his power to pay and he did not want to, and afterwards he lost his assets, or if he borrowed from the outset in a manner where he had nothing with which to pay, such that he remains "a wicked borrower who does not pay"—it is proper for the son to save him from punishment and to reach an agreement with the creditors so that they forgive him [it appears to me]:

Our teacher, the Rema, wrote in section 1: If he inherited some property, he only needs to pay what he inherited. Thus far his words. And I do not know what this comes to teach us. It appears that his intention is that if he inherited the value of a maneh in silver and the debt is double, he can remove the creditor with the maneh, and the creditor cannot say, "Give me my entire debt or give me what you inherited, and to me it is worth my entire debt," as a purchaser can say to a creditor, as will be explained in siman 114. But the creditor cannot say this to an heir, as is written in siman 109, and there it will be explained that there are those who disagree on this. He further wrote that if he says, "I am not inheriting and I am not paying," see below at the end of siman 278 if they listen to him. Thus far his words. And there it was explained that regarding the portion of the firstborn he can say this, but regarding the portion of a simple heir there is a dispute among the poskim, as is written there in the Tur [and the Rashbam in Bava Batra 124a takes it as obvious that he cannot say this, and according to the Tosafot there, only through a kinyan can he remove himself].

If the heir claimed that his father left him nothing and he is not obligated to pay his father's debt from his own property, if the lender claims with certainty that his father bequeathed him money or movable property or lands or debts, the heir swears a shevuat hesset and is exempt. And if the lender claims perhaps, he has nothing against the heir but a herem stam, and according to our custom which we have explained several times, he can impose upon him a kabbalat herem. However, one does not administer to the heir the oath instituted by the Geonim that was explained in siman 99, for they only instituted it for the borrower himself and not for his heirs [Sma].

If the debtor gave his movable property as a matnat shekhiv mera to his sons or to others, the creditor collects from them. For even though he does not collect from movable property that he sold or gave as a matnat bari, nevertheless, regarding what he gave as a matnat shekhiv mera, he collects from them after the enactment of the Geonim that movable property has the law of land. For even though a matnat bari is like a sale, since if he did not have benefit from it he would not have given it as a gift and it is like a sale, nevertheless, in a matnat shekhiv mera it is not so, for a matnat shekhiv mera is no better than an inheritance [Tosafot Ketubot 49b and the Rosh]. And although there are those who disagree on this, nevertheless, so it appears primary for the halacha, and so appears the opinion of our teacher, the Beit Yosef, in his book, siman 253, see there. And all the more so if it appears that he did this with cunning to evade the creditor. And even according to those who disagree in Even HaEzer siman 93 regarding the sustenance of his wife, nevertheless, regarding a creditor it is possible that they agree, for even according to the law of the Gemara the power of sustenance is not as great as the power of a creditor, for sustenance is not collected from encumbered property even from land [it appears to me, and see in Urim VeTumim].

Our teacher, the Rema, wrote in section 2: The Hagahot Ashri wrote in the chapter "Mi Shemet" in the name of Rabbeinu Tam and Rabbeinu Shimshon: Reuven who was indebted to Shimon, and Reuven died, Shimon may delay his burial until they pay him. And if Shimon is a relative of Reuven, the members of the family may protest against him so as not to delay his burial, in order not to disgrace him. And likewise, if a creditor came and collected all his property, he is not obligated to bury him. Thus far his words. And the explanation of these matters is, for example, when the debt is clear and there is from what to pay, and according to the sight of the eyes of the beit din it will be difficult to extract it afterwards from his heirs, such as if they are violent men and do not obey the law; in this case, certainly the creditor has the power to delay the burial [Chacham Tzevi]. And so they practiced, that if according to the sight of the prominent men of the city, after the burial it will be difficult to extract it from his heirs and according to the law they must pay, they delay the burial, for the delay of his burial is a merit for the deceased. But if there is nothing from which to pay, or the debt is not clear, or the heirs are upright people, it is forbidden to delay the burial. And there are those who explained that it refers to when the heirs wish to squander the money that remains on the needs of the burial, and the creditor delays so that they pay him first, for the burial is incumbent upon all of Israel, and why should the creditor suffer alone? And this too is certainly true according to the law, but the wording of the Hagahot Ashri implies as I wrote, for according to this explanation, what is "and likewise etc."? Is it not an a fortiori argument?

An heir who sold all the properties of his benefactor, the creditor seizes from the purchasers when it is a debt with a document. And even if the heir has lands of his own and wishes to give them to the creditor, the creditor is able not to accept them, for he can say: perhaps a claim will arise against your land and they will seize it from me, and my lien is not upon you but rather upon the properties of your father. And even when the land of the deceased is of inferior quality and theirs is of superior quality, he cannot remove him with his superior quality land against his will. But if the heir gives him coins or his own movable property so that he does not seize from purchasers, he can remove him against his will, since there is no concern of a claim against this, unless his benefactor made these properties an explicit apothiki for the creditor, for then he collects from the apothiki. And likewise, if there is a concern regarding the movable property that they will seize it from him through violence, the creditor is able not to accept them; and everything is according to the sight of the eyes of the beit din.

An heir who sold all the assets of his benefactor, and the creditor is unable to seize from the purchasers—such as if he sold them to a powerful person, or if it was an oral loan, or if he sold movable property which is not seized from purchasers [Shach], even when he had subordinated movable property to him along with landed property as written in siman 60, and similar cases—the creditor collects from the money in the hands of the orphans for two reasons. The first is that since nowadays movable property is like land, if so, what difference is there to me between the item he sold or the exchange value of the sale? Furthermore, since the heir damaged the lien of the creditor, he must pay, as we establish that one who damages the lien of his fellow is liable to pay, as will be explained in siman 386, and as written in siman 104 regarding a later creditor [ibid.]. According to the second reason, even if the heir lost the money, he is liable to pay [it appears to me]. And so too if he gave it as a gift, he is liable to pay even though he did not receive money [Urim VeTumim]. And although there are those who disagree on this, nevertheless, this is the primary ruling, and this is the opinion of Rav Hai Gaon and the Tur. And even the one who disagrees would admit that in this time there is no doubt in this law, for if we were to say that he does not collect, many heirs would do so.

If their father owed a debt of a maneh and did not leave behind land or movable property equal to the value of the entire debt, but only land worth fifty, and the creditor came and seized it, and the heirs gave him fifty zuz of their own—even if they did not say to him that they were giving it to him as the value of this land—he cannot go back and seize it from them for the remainder of his debt by saying to them: "The fifty that you paid, you performed a mitzvah to pay your father's debt, and your father's land remains encumbered to my debt as before." For it is true that in the time of the Gemara, when the movable property of orphans was not encumbered to a creditor, and if their father had left behind movable property, he could have said so; since you did not specify that you gave it for the land, I say that you paid this from the movable property your father left behind, for there is a mitzvah to pay from movable property as well, as written in section 1. But now that we hold that movable property is like land, and if movable property had remained he would have collected by law, we must be dealing with a case where nothing remained from him except the land for which they paid from their own; consequently, when they paid, even if they paid without specification, it is as if they specified it was for the land, for there is no mitzvah to pay from their own. And so too, if there is a later creditor than this creditor, he cannot seize this land even when they paid the earlier one the fifty without specification, for it is as if they appraised the land to him for his debt and then went back and purchased it from him.

If brothers inherited lands from their father and divided them, and a creditor comes to seize them: if they only inherited two fields and each one took one, they cannot say to the creditor, "Take for yourself from each of us half a field," because they stand in the place of their father; and just as their father did not have the authority to remove him with two half-fields, so too they cannot say this, and they must give him a complete field if it amounts to his debt. And they may give him even ziborit, for one only collects from orphans from ziborit. And if the heirs cannot reach an agreement among themselves as to from whom he shall take, he takes whichever field he desires, and he can do a favor for one and seize the field from the other, since his lien is upon all of them; and since they do not reach an agreement among themselves, he can seize even the idit. And this one cannot say to him, "Is it not so that your law is not for idit? Go to the ziborit or the beinonit that is in the hand of the second," because the creditor can say to him, "Since the other permits me to take even from the idit, the authority is in my hand, and I have the power to take from whom I desire when you do not reach an agreement between yourselves, for my lien is upon both of you." But if they inherited four fields and his debt is equivalent to two fields, he cannot take the two from one, but rather he takes one field from each one, for even their father would have had the power to do so, even if the two fields are not adjacent to one another, since they are complete fields. This is unless the borrower made for him an apotiki of the two fields that fell to one, for then he takes them; and even if he did not make them an explicit apotiki, but rather liened all his properties to him and defined those fields for him by their boundaries to be first for payment, for then the authority is in his hand to take these two fields because he has upon them more of a lien than upon the other fields.

If their father left them money and movable property and they divided it, and a creditor came to collect from them—according to our practice that we collect from the movable property of heirs, and likewise if one took land and the second took movable property [Shach]—if they are present before us, he collects from each one his portion, for the obligation to pay their father's debt is incumbent upon both of them; only that he is not obligated to take two halves of fields, but regarding half of movable property, he is obligated to take. Consequently, when one inherited land, he only collects half of the land, and specifically when there is the measure of a field as will be explained in siman 171. And if they are not all present before us, he does not need to pursue them, but rather he shall take his entire debt from this one who is before us, and he will pursue the others. And likewise, when both of them inherited lands and one land is far from here, he collects his entire debt from the land that is here, for even regarding purchasers, he can seize from them from the properties that are here even when there are unencumbered properties in a distant place, as written in siman 111 [Sma]:

If they inherited lands and divided them, and one of them sold his portion or gave it as a gift, and the creditor of their father came to collect his debt, he seizes half of the debt from the purchaser who bought from the heir and the other half from the other heir. The purchaser cannot say, "I have left you unencumbered property with the second brother," for this applies only to the debtor himself; but regarding heirs, since each one must pay his portion, and regarding the heir who sold, there is no unencumbered property with him, and the unencumbered property that his brother possesses is not relevant to the payment of his portion [ibid.]. And it appears to me that in this case he is obligated to accept even two halves of a field, for from the purchaser he certainly cannot receive more than the half of the field incumbent upon the heir who sold to him; but even from the other heir he cannot receive his entire field. For it is well and good when the second has not sold, he can receive a complete field and they would be partners in the second field that they both inherited, but here this brother can say, "I have no desire to be in partnership with the purchaser who bought from my brother." And only if there is not in each field the required measure that will be explained in siman 171, let the law pierce the mountain with "buy it or I will buy it," as I wrote in siman 103 [it appears to me].

A creditor who approached some of the heirs and said to them that their father owed him, and they did not wish to stand with him in judgment and reached a compromise with him—the other heirs can claim from them or from the creditor what pertains to their portion from the compromise, for they can say, "We do not desire a compromise, but rather the law of the Torah" [as is the intention of the Rosh in the Sma, subsection 23]. Nevertheless, they do not have the power to nullify the entire compromise as in siman 175, where when a third brother comes the division is nullified, for there they divided based on two and did not know they had another brother, and it was a division in error; but here, they compromised regarding everyone, except that those who were not involved in this can nullify the compromise regarding their portion. However, those who accepted, accepted, for it was not a compromise in error. Nevertheless, the creditor can nullify it entirely, for he can say, "I thought that everyone would agree and I would not need to stand in judgment, but since I must stand in judgment, it is better for me to stand in judgment for the entire debt" [it appears to me].

Shimon who said to heirs, "I have a maneh in your possession," and did not specify to them whether it is due to him from their father or if he is claiming from them themselves, and they admitted to him before witnesses also without specification, and when he returned to claim from them they said to him, "We did not admit to you that we owe you except on account of our father," and he did not leave anything with which to pay, and he says, "Not so, but rather on account of yourselves you are liable to me," since they admitted without specification, they are liable to pay him, and one does not accept excuses regarding a complete admission. And this is specifically when they do not have a migo of "I paid," such as when it is within its time and the like, but when they have a migo they are believed [Shach], for this is not a clear presumption that they did not admit regarding their father's debt such that we would not say migo in this case. And so too when they did not admit before witnesses, they have a migo of "the matter never occurred." And if they admitted before one witness and they say they did not admit, they swear a Torah oath to contradict the witness. And if they admit that they admitted before the witness without specification, but they say that they did not admit regarding their own debt but rather regarding their father's debt, they are liable to pay, for they are obligated in an oath to contradict the witness and they cannot swear this oath, for in this claim of theirs the witness does not contradict them; and that they should swear that the admission was regarding their father's debt, this is not the oath that the Torah obligated. And anyone obligated in an oath who cannot swear pays, as was written in siman 75. And this too is specifically when they do not have a migo of "I paid," such as when he testifies that it is still within its time or that his hand did not move from their hand and the like, but when they have a migo they are believed with an oath, as was written there, for in this case we do not say "since he cannot swear he pays" [ibid.]. And also regarding two witnesses where we explained that when they have a migo they are believed, nevertheless they must swear a hesset oath that it is as they say [it appears to me].

If their father left them movable property and they went ahead and paid a later creditor, an earlier creditor cannot extract it from his hand, for regarding movable property seizing is effective, as I wrote in siman 104. Furthermore, the heirs are not obligated to pay the earlier creditor based on the reasoning of one who damages the lien of his fellow as in section 8; for since the later creditor also has a lien on these movable properties, and had he seized them himself the earlier creditor could not extract them from his hand according to the law, even though they did not act properly by handing them over to the later creditor, nevertheless this is not like one who damages the lien of his fellow [Ktzot HaChoshen]. And even the borrower himself, if he handed them over to the later creditor, the earlier creditor cannot extract them from his hand for this reason; for even though in siman 104, section 2, it was explained that the earlier creditor can prevent this so as not to hand them over to the later creditor, but once he has handed them over, what he has done is done [it appears to me].

A loan by word of mouth is not collected from orphans except according to the details that will be explained in siman 108. Furthermore, even if Reuven died and it was found in his ledger written in his own handwriting that he owes Shimon a maneh, the heirs are not obligated to pay. And even though one adjudicates based on a person's ledger when there is a basis for the matter, as was written in siman 91, nevertheless they are exempt here; for certainly the ledger is true in that he was indebted to him, but perhaps he paid him and did not concern himself with erasing it since it was in his possession. Consequently, there is no basis for the matter to say that he did not pay him, for a loan by word of mouth is not collected from heirs unless it was within its time, where there is no concern of payment, as will be explained there. And if the lender claims that the heirs know that it has not yet been paid, and the heirs say that they do not know, they shall swear a shevuat hesset that they do not know and are exempt.

In a case where one does not collect according to the law, the sages of blessed memory said that seizing after death is not effective, neither regarding land nor regarding movable property. For regarding land, seizing is not applicable as it remains in the possession of its owners, and regarding movable property, it is not effective according to the law of the Gemara, for the movable property of orphans is not liened to a creditor, and seizing is only effective if he seized them during the lifetime of the borrower. However, nowadays, since the Geonim enacted to collect from the heirs even from movable property that their father left behind, consequently, if the creditor seized them even after death, it is effective, even if he has no witnesses to his debt. And although if he had not seized them we would not have authorized him to collect, nevertheless, when he has seized them, he is believed to collect from them with an oath when there are no witnesses to the seizing and he has a migo of "I did not seize," as I wrote in siman 64. And likewise, even when there are witnesses to the seizing, but there are no witnesses who see these movable properties now in the hand of the creditor, he is believed with an oath up to their value with a migo that if he wanted, he could have said "I returned them," for even if we were to consider him a thief, we hold that one who robs his fellow with witnesses does not need to return to him with witnesses. And if the creditor claims that the heirs know that he is owed by their decedent, and he wishes to administer an oath to them that they do not know of this debt and to return to them what he seized, the authority is in his hand. And know that in every place where one collects from orphans, one also collects from recipients of gifts of a shekhiv mera, as I wrote in siman 253; see there.