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Shabbat Parashat Vayeitzei 5775

P'ninat Mishpat: A Husbands Obligation in His Wifes Loan

(based on Shoel Umeishiv, II:II:18 part I)

[A woman, whose husband was away from home for an extended period of time, borrowed money, which included payments of expected profits based on a heter iska, which stated that she invested the money she received. Now she claims that she gave the money to one specific person and did not see profits, and so she is not willing to pay the promised profits. Upon the husband’s return, he claimed that he was not obligated to return even the principal, because his wife took the loan without his authorization.]

 

(We will deal with different elements of this case next week.)

 

Regarding the husband’s responsibility, there is a situation known as a wife who is involved in the financial activity of the home. The Rama (Choshen Mishpat 96:6) says that while there is an opinion that the husband is obligated for the debts created by his wife who is active in the finances of the home, the halacha is like the one who says the husband is not obligated. The Shach (ad loc. 9), though, argues convincingly at length that a husband is obligated for such a wife’s activities. In any case, when the common practice in society is that wives not only get involved in financial dealings but are generally authorized by their husbands to create obligations for them, the Rama agrees that this is binding on the husband. While the Minchat Yaakov argues on the Shach, his arguments are not convincing and, in any case, should not stand against the common practice, as the Tumim points out. Therefore, the husband is obligated not only in the principal but potentially even in the profit payments.

The Chut Hashani (Shut 43) talks of a woman who accepted to become a guarantor for a loan from which she also benefited. He rules that she becomes obligated as a guarantor even if her husband was unaware of this activity. The Beit Shmuel (102:8) says that when she is a financially active woman and the money also goes through her hands, she becomes a guarantor. He continues that if the funds also went through her husband’s hands, he also becomes a guarantor even according to the Rama (above) because the Rama was talking about a case where the money did not get to him.

Based on the Beit Meir (ad loc.), we should explain that if the husband and wife work jointly with the money, then when she is given money to which he also obtains access, the two are considered partners in it. If one demands from the husband the return of money given to the wife, the husband can be forced to pay only if he admits or it can be proven that the money made it to him. Otherwise, he is not always liable, although in some cases there is a takanat hashuk, based on which we assume the husband did become responsible.

In this case, one of the factors that contribute to the assumption that the wife was authorized to obligate the two spouses in the loan is the fact that he was away for an extended period of time (see Knesset Hagedola, CM 62:8). In that case, even the average wife, who is not very financially active, is assumed to have authority to keep the household or her husband’s business going, which requires such authority.

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