Honoring A Father’s Wishes
‘ He shall give it to whom he has trespassed.’
(Bava Kamma 40b)
Nathan concludes that a creditor can collect payment for a loan from the debtor of his debtor, based on the verse (Bamidbar 5:7), “… Venassan la’asher asham lo. – … [A]nd he shall give it to him against whom he has trespassed.” For example, if Shimon owes Reuven the sum of $100 and Levi owes Shimon $100, Reuven has recourse for retrieving the outstanding debt by going directly to Levi for payment, bypassing Shimon. (This would apply to a case where Shimon’s financial situation makes it hard for him to repay the loan.) One of the apparent reasons for R. Nathan’s conclusion is the verse (Tehillim 37:21), “Loveh rasha ve’lo yeshalem … – The wicked borrows but does not pay back …”
Usually, a righteous individual will not want to be classified as a wicked person and will wish to repay whatever he owes. At times, however, his money may be tied up because of loans he has advanced to others and he is unable to repay his own debt. This clause of R. Nathan is known commonly as “Rabbi Nathan’s lien” (Shi’buda deRabbi Nathan).
A Note As An Asset
Ran (Kesubbos 19a, cited by Aruch HaShulchan, Choshen Mishpat 86:2) questions the necessity of R. Nathan’s exposition of the law derived from that verse. Since Shimon owes money to Reuven, all of Shimon’s assets will be applied to the repayment of debts, including whatever is owed to Reuven. The loan note, namely, the document that testifies to Shimon’s indebtedness to Reuven, is obviously considered to be one of Shimon’s assets. Thus, if Reuven secures that note, he would be entitled to present it to demand payment from Levi.
A Mere Paper
Ran (as well as Rashba in his Chiddushim at the end of Tractate Kiddushin) maintains that one cannot use a loan document as payment for a debt because such a note has no intrinsic value. It cannot be considered as either money or property, and therefore it has no value of its own and is no proof of the indebtedness.
That is why R. Nathan uses the above-cited verse to classify Levi’s debt to Shimon as a debt that is owed directly to Reuven.
Cash Or The Like
Ketzos HaChoshen (siman 86:s.k. 1) points out that according to biblical law, only that which is in the debtor’s possession at the time the loan is made can be subject to the lender’s lien. Thus, in the instance where Shimon borrowed money from Reuven after he had lent money to Levi, Levi’s debt or note to that effect would not be subject to Reuven’s lien.
Therefore, were it not for R. Nathan’s position, Reuven would not be able to collect his debt from Levi directly. Ketzos HaChoshen also proposes another explanation. If Shimon offers to settle the debt by paying Reuven in cash, Reuven would not be entitled to refuse such payment and demand payment in real property from Levi (which might at times be more valuable), were it not for R. Nathan’s clause.
Forgive And Forget
Ritva (Kesubbos 19a ad loc.) remarks that were it not for R. Nathan’s rule, Shimon would be able to waive Levi’s debt to him in spite of the fact that he himself is indebted to Reuven. Obviously, in a case where Shimon does not have the means to repay the loan to Reuven, the latter would be deprived of any means to recover the money due to him.
Before You Sign
Sometimes a document created for debt retrieval may inadvertently cause the Shi’budda deRabbi Nathan not to apply. It may also impede a son’s ability to honor his father’s proper wishes to repay all his debts. Note the following:
A case illustrating such a situation came before Rabbi Yehuda Ayache (5460-5521), who served as rabbi in Algiers (see Responsa Beth Yehuda vol. 1, Choshen Mishpat 40). An individual empowered his two sons by means of a shetar harsha’a, a full power of attorney, to collect any of his outstanding loans; it also gave them the right to sell any of his real property. One son left the country, leaving the document with his brother.
When that brother came across one of his father’s debtors, that person insisted on the specific terms of the document – that both sons [not one] had the authority to collect the debt. The debtor repaid the loan nonetheless, but the money was placed in the hands of a third party until the matter could be resolved.
But then another person suddenly appeared on the scene. It was someone to whom the father himself was indebted and who now claimed the money based on Shi’buda deRabbi Nathan – but due to the document, he was turned down.
