Pleading The Fifth
‘…And Minors Are Not Obligated To Fulfill Mitzvos’
A mishnah (21b) states that if beis din wishes to sell the property of orphans for payment of a debt, it must publicize the sale and take bids for at least 30 days. Rabbenu Gershom explains that this is done to ensure that a wide a range of prospective buyers will come and try outbidding one another. This will result in the orphans receiving the highest possible price.
R. Yehuda stated in the name of R. Assi that as a general rule beis din does not sell the property of minor orphans to satisfy debts, unless the loan was given on interest (by a non-Jewish creditor). In such a case, beis din is duty-bound to expedite a sale to prevent the further accrual of interest. Two reasons are given for beis din not being allowed to sell the property of minor orphans.
Was It Repaid?
R. Huna ben R. Yehoshua explains that we are concerned that the father might have paid off the debt immediately prior to his death. Rashi (s.v. “tzerori atfesei”) explains that in his haste he might not have retrieved the bill of indebtedness from the creditor. Delaying collection of the loan (by selling property) until the orphans mature gives the orphans an opportunity to seek proof that their father possibly did indeed repay the debt.
Keeping One’s Word
R. Pappa, on the other hand, offers a totally different reason for restraining beis din from selling the property of minor orphans to satisfy a creditor’s claim. He argues that repaying a debt is a mitzvah and minor orphans are not obligated to fulfill mitzvos. The Ramban (novella, Bava Basra 174) explains that even if the orphans inherited property from their father, R. Pappa is of the opinion that properties are not legally mortgaged for payment of a father’s debts on a biblical level. The only factor compelling a debtor and his heirs to repay a debt is due to a Torah obligation requiring a person to keep his word. Minors, however, are not obligated to keep mitzvos and thus cannot be compelled to pay their father’s debt until they reach maturity.
Don’t Pay More Than A Fifth
The Gemara (28a) states that a person should not give more than a fifth of his earnings to charity. The Rambam (Hilchos Arachin ve’Charamin 8:13) applies this rabbinic teaching to other mitzvos. He writes that if a person obligates himself to bring a korban with an oath, he should be cognizant of the fact that the Torah itself is very protective of his possessions and should never go beyond his means in fulfilling this oath. Similarly concerning an esrog: If a person only has $100 to his name, he should not purchase an esrog for more than $20. If he can’t find an esrog for that price, he is not required to buy one.
The following question was posed to Rabbi Chayyim Solovechik of Brisk (Novella 129) regarding R. Pappa’s ruling that repaying a creditor is a mitzvah: What if one’s debts amount to more than twenty percent of one’s assets? Is one then exempt from repaying the debt being that one is generally exempt from spending more than a fifth of his money for a mitzvah?
Just Getting Back What’s His
The Brisker Rav answered: Money that a person gives to his creditor is the creditor’s money – not his. (Prior to the payment of the debt, we consider the money to be the debtor’s – and not mortgaged to the creditor – but once the debtor pays the creditor, we view this payment as if the creditor has received his own money back.) Therefore, since the debtor is not spending his own money but is rather simply returning money that belongs to the creditor, the rule that one does not spend more than a fifth of his wealth does not apply.
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