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Kesuvos, 91


OPINIONS: The Gemara records a case of a man who died with a debt to a lender of 100 Zuz. The man had land worth 50 Zuz. The lender came to the man's heirs to collect his money and he took the land worth 50 Zuz. The heirs then paid him 50 Zuz in order to get the land back. The lender then collected the remaining 50 Zuz by taking the property that they had just taken back from him. Abaye ruled that the money that the heirs paid (in order to get back the land from the lender) was a fulfillment of their Mitzvah to repay their father's debt, and it was not a purchase of the father's property. That is, they were simply asking the lender to settle for cash instead of taking their property towards the payment of the loan. Therefore, the lien on the land was still binding and the lender was entitled to take it as repayment for the remaining debt of 50 Zuz.

The Gemara explains that Abaye's ruling applies only when the heirs did not specify why they were giving the money to the lender. However, if they explicitly told him that they are giving him the money in order to *purchase* back the land, then the lender may not expropriate the land again in order to collect the remaining 50 Zuz (since his lien was "used up" through his collection of the property towards the loan, and he no longer has any lien on the property).

Rashi and the Rishonim learn from here that Beis Din may only *force* heirs to pay their father's debt when they inherited land. If they inherited only money, then although it is a Mitzvah for them to repay (as Abaye states), Beis Din cannot force them to repay.

On the other hand, the Gemara (86a) says that Beis Din does force one who owes money to pay his debts. When can Beis Din force a person to pay his debts, and when is it only a Mitzvah?

(a) TOSFOS (86a, DH Peri'as Ba'al Chov Mitzvah) and the RAMBAM maintain that if the heirs inherit land, then Beis Din forces them to pay their father's debts. If they inherit only mobile property (Metaltelin), there is a Mitzvah to repay the debts, but Beis Din does not force them to repay. If they do not inherit anything, then there is not even a Mitzvah to pay their father's debts.

The logic behind this is that Beis Din enforces the lien on the property that is inherited, since the lender has monetary rights to the land which is secured as the lien. Since there is no lien on mobile objects, if the heirs inherit only mobile objects, they are required to pay back the debt only to keep the Mitzvah of Kibud Av. (See Kidushin 31b, where the Gemara says that one is required to honor his parents after their deaths.) Beis Din does not *force* people to keep this Mitzvah, though, since the reward for this Mitzvah is explicitly stated in the Torah. (This is *not* the way Rashi here understands the Mitzvah to repay one's father's debts.) If the children do not inherit anything from their father, they are not required to pay his debts since the Halachah does not require one to spend his own money for the Mitzvah of Kibud Av. (HAGAHOS ASHIRI to the Rosh 9:14)

(b) RABEINU CHANANEL and the RASHBA (86a, see also RAN) disagree with the other Rishonim. They maintain that when the heirs inherit mobile objects, Beis Din *does* force them to pay their father's debts. When they inherit nothing from their father, then there is still a *Mitzvah* to pay their father's debts, but they are not forced to do so.

These Rishonim understand that our Gemara is discussing a case where the children did not inherit anything, and therefore Beis Din does not force them to pay their father's debts, but nevertheless it is a Mitzvah for them to do so (in order to show honor to their father, "Kevod Avihem").

Why, though, does Beis Din force them to repay their father's debts when they inherit mobile property? It cannot be that there is a lien even on mobile property, and therefore the lender has monetary rights to the objects that the heirs inherit. We know that no liens take effect on mobile property.

Furthermore, the Gemara says explicitly that "Metalteli d'Yasmi Lo Mishtabdi l'Ba'al Chov" -- the mobile property of heirs are *not* Meshubad towards the payment of their [father's] lender (Kesuvos 92a)!

In answer to the first question, the KETZOS HA'CHOSHEN (39:1) explains that the Rashba holds that the principle that there is no lien on mobile property is only mid'Rabanan; mid'Oraisa, though, all property, whether land or mobile property is Meshubad to the lender. As for our second question, the Gemara on 92a only means that mobile objects *purchased from a borrower* the lender's lien not take effect to collect the object from the buyer.

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