The Debt Lives On
‘The Orphans’ Mitzvah To Repay Their Father’s Debt’
(Ketubbot 91b)
A borrower’s karka – land, real estate – is encumbered for repayment of his debt. Therefore, if he sells his fields or bequeaths them to his children, his creditor could appropriate those fields from the borrower or from the heirs as payment for the loan.
Metaltelin (chattels) are not encumbered for payment of a loan, and therefore a creditor cannot appropriate the borrower’s chattels after they were sold. (See Me’iras Einayim to Choshen Mishpat 107:sk15, who limits the takanas geonim cited by Rabbi Yosef Caro (Choshen Mishpat 107:4-5) who extended the creditors right of collection to a chattel, albeit where it was not yet sold.)
A Matter of Honor
The Gemara states that orphans have a moral obligation to repay their father’s outstanding debts even if they did not inherit real estate. Rashi explains that it is a mitzvah miDerabbanan for them to repay their father’s outstanding debts (even if they did not inherit real estate) in order to uphold his honor. However, the beth din does not compel orphans to fulfill this requirement (since it is not a mitzvah min ha’Torah).
Two Views
Rambam (Hilchos Malveh Ve’Loveh 11:8) writes that orphans have an obligation to use the inheritance to repay their father’s outstanding debts. However, Rambam indicates that orphans are not obligated to spend their personal money for this purpose.
The Rashba (Baba Batra 157) disagrees, and asserts that orphans are even obligated to spend their own money to repay their father’s debts and uphold his honor.
Of Their Own Funds
The Haggahos Asheri (to Rosh, Ketubbot 9:14) cites a dispute mentioned in Kiddushin (32a) concerning the general mitzvah of honoring parents. R. Yehuda is of the opinion that the mitzvah requires a son even to spend his own money when necessary to honor his parents. This view appears to be consistent with Rashba’s position requiring a son to spend his own money to protect the honor of his father by repaying his outstanding debts.
The Halacha
The halacha (Yoreh De’ah 240:5), however, follows R. Nathan, who maintains that the mitzvah of honoring parents only requires children to spend time and effort for their parents’ honor (lit. “Go from door to door” – and seek charity to repay a parent’s debt – when they are destitute, but does not require them to spend their own money.
Accordingly, the Haggahos Asheri argues in support of Rambam, that if the orphans did not inherit anything from their father, the mitzvah of honoring one’s parent does not require them to repay his debts with their personal money.
