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Shabbat Parashat Korach 5774

P'ninat Mishpat: A Creditors Seizure of an Orphans Inheritance

(based on Shut Hamaharit, Choshen Mishpat 35)

[Reuven died, leaving a son, Chanoch, with little known inheritance and with debts to Shimon. Chanoch was raised and supported by his mother’s family. When Chanoch grew up, he received an inheritance upon the death of his father’s nephew. Shimon seized this inheritance, with the claim that Chanoch’s family certainly hid assets from Reuven’s estate, which should have been used to pay Reuven’s debt to him. Does Shimon have a right to seize Chanoch’s inheritance from estates other than his borrower, Reuven?]

 

If Shimon claims to know that Chanoch and his mother acted in collusion to hide Reuven’s assets, he can make Chanoch swear that this is not the case. If he is unsure, he can only make a general cherem on him to apply if indeed he is guilty.

However, if the claim is that Chanoch’s family has withheld Chanoch’s inheritance of his father from him, which impacts Shimon because when Chanoch inherits his father, Shimon will get his part based on liens, Shimon cannot force Chanoch to take actions against his mother’s family. The gemara (Ketubot 86a) says that, in general, a creditor cannot force his debtor to take steps to make his assets available for the former to have the easy ability to receive them. Only a worker can make his employer sell his assets in order to have cash to pay the worker (see Tosafot, Bava Kama 9a), whereas other creditors may have to go themselves through the legal steps of acquiring the assets from which payment can be extracted.

The matter is even clearer in this case, as Chanoch does not personally owe Shimon money, just that Shimon has the ability to receive assets that Chanoch inherited from Reuven. We do find that a firstborn can refuse the right to his double portion of inheritance to prevent his father’s creditor from recovering his loan from it, whereas he cannot do so from his regular inheritance (Bava Batra 124a). However, this just means that the inheritor cannot sell his rights to someone else to obviate the creditor; it does not obligate him to make the efforts to find and make the assets available to the creditor. Although the Ri Migash seems to say that the inheritor does have to make the efforts, we accept the opinion of the Rashba and others that this is not so.

Actually, even the Ri Migash seems to be talking only about the case of a group of inheritors of whom some are under age and cannot be sued. In that case, we require the older brothers to take care of the payment. In our case, it would appear that the Ri Migash would agree that Chanoch can tell Shimon that if he has claims against Chanoch’s mother’s family, he should sue them rather than seize the inheritance that Chanoch received from his father’s side of the family,

The one thing that needs to be discussed is the possibility that since this new inheritance came to Chanoch because he is Reuven’s son and, so-to-speak, through Reuven, Reuven’s creditor should thus have rights to those assets as if they were Reuven’s. Such an opinion appears in the Sefer Haterumot in the name of the Re’em. However, almost all authorities say that the idea of applying the creditor’s lien to that which “went through the father in the grave” in regard to his son is rejected by the gemara (Bava Batra 159a). Therefore, Shimon cannot seize the assets in question.

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