The Debt Lives On
‘The Orphans’ Mitzvah To Repay Their Father’s Debts’
(Ketubot 91b)
The land of a borrower can be seized is he doesn’t have money to repay a debt. Therefore, if a borrower sells his land or bequeaths it to his children, his creditor can appropriate those fields from the borrower or from the heirs as payment of the loan.
Movable objects, however, may not be seized as payment of a loan. Therefore, a creditor cannot appropriate the movable objects of someone who borrowed money from him if they were sold or bequeathed to his heirs. (See the Me’iras Einayim to Choshen Mishpat 107:15 who limits the takanas geonim that creditors may seize movable objects to instances where they haven’t been sold yet.)
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 land. Rashi explains that it is a mitzvah m’derabbanan for orphans to repay their father’s outstanding debts to uphold his honor. However, beis din may not compel orphans to fulfill this requirement (since it is not a mitzvah min haTorah).
Two Views
The Rambam (Hilchos Malveh Ve’Loveh 11:8) writes that orphans have an obligation to use their inheritance to repay their father’s outstanding debts. However, the 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
Haggahos Asheri (to Rosh, Ketubbot 9:14) cites a dispute mentioned in Kiddushin (32a) concerning the general mitzvah of honoring one’s parents. R. Yehuda maintains that the mitzvah requires a son to spend his own money when necessary to honor his parents. This view appears to be consistent with the 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 (to “go from door to door,” seeking charity to repay a debt), but does not require them to spend their own money.
Accordingly, Haggahos Asheri argues in support of the 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.
