Pleading The Fifth
‘Minors Are Not Obligated To Fulfill Mitzvos’
The Mishnah (21b) states that if beis din wishes to sell the property of orphans (to repay a debt they owe), it must publicize its intentions and take bids for at least 30 days. Rabbeinu Gershom explains that it must do so in order to ensure that a wide range of prospective buyers will bid on the properties, thus leading to a higher sale price.
R. Yehudah stated in the name of R. Assi that, as a general rule, beis din does not sell the property of minor orphans to satisfy a debt unless the debt is due to a loan that was given on interest (by a non-Jewish creditor). In that case, beis din is duty-bound to expedite a sale to prevent the further accrual of interest.
R. Huna b. R. Yehoshua explains that beis din does not usually sell the property of minor orphans to satisfy a debt because the father might have paid off the debt immediately prior to his death. Rashi (s.v. “tzerori atfesei”) explains that the father might not have retrieved a shtar chov (bill of indebtedness) from the creditor due to his haste. We therefore wait until the orphans mature at which point they will have the opportunity to seek proof that their father paid off the debt.
Keeping One’s Word
R. Pappa, however, offers a totally different reason for not selling a minor’s property to satisfy a creditor’s claim. He says perias ba’al chov mitzvah – repaying a debt is a mitzvah – and minors are not obligated to fulfill mitzvos.
According to the Ramban (novella, Bava Basra 174), R. Pappa maintains that orphans’ property are not legally designated as payment for their father’s debt on a biblical level (shibuda lav d’oraysa) even if they inherited the property from their father. A debtor normally must repay his debt because he must keep his word. Minors, however, are not obligated to observe mitzvos and therefore minor orphans cannot be compelled to fulfill their fathers’ promise.
Al Yevazvaz Yoser Mi’chomesh
The Gemara (28a) says 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. For example, a person shouldn’t buy a very expensive korban if he can’t afford it. He also shouldn’t, for example, pay more than $20 for an esrog if he only has $100 to his name. If no such esrog exists, he is not required to purchase an esrog.
Based on this rule (that a person is exempt from fulfilling a mitzvah that will cost more than 20 percent of his worth) and R. Pappa’s position that repaying a debt is a mitzvah, Rabbi Chayim Solovechik of Brisk (novella 129) was asked if a person must repay a debt if it amounts to more than 20 percent of his assets.
The Brisker Rav answered. The money a person owes another doesn’t belong to him. It belongs to his creditor. Even if initially we consider the money the debtor’s (and it is not mortgaged to the creditor), once payment is made, we view the creditor as having received his own money back. Since the debtor is not spending his own money but rather returning money that belongs to someone else, the 20 percent rule is not relevant.