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Shabbat Parashat Shemot 5775

P'ninat Mishpat: Taking Payment from the Estate of the Borrower

(based on Shoel Umeishiv II:IV:52)

Case: Reuven died, leaving a young son and four daughters. Thereafter, the son also died, and the daughters received the inheritance. Shimon came forward with a document signed by Reuven that Shimon had invested money with Reuven as an iska, so that half the money was to be returned as a loan and half as money entrusted to Reuven to profit for Shimon (pikadon). The document states a time for the return of the money which transpired only after Reuven’s death. Levi made a claim of a loan Reuven took from him before witnesses but without a document. What monies can be taken from Reuven’s estate, which is in the hands of inheritors, one of whom is a minor?  

 

Ruling: One of the cases where it is possible to extract money from a minor inheritor is when the loan was not due when the borrower died, as we can then assume that he did not pay yet. Regarding the pikadon part of the iska, usually we say that since one can say that something happened to the pikadon, he has the right to say that he actually returned it, and therefore beit din will make that claim on behalf of the unknowing inheritors. However, since the money was invested in a business that is in the public eye, the father would not have been believed with the claim that something happened to the pikadon, and therefore neither he nor his inheritors can use the claim that he had already paid. In such a case, it is possible to extract money even from an inheritor who is a minor.

In this case, the document was not signed by witnesses but by Reuven’s alone. Since Reuven’s signature is very well known in town, it is considered as if the document was already verified. According to the Radbaz (III:510), if there are both adult and minor inheritors, if the lender can take from the former, he can take from the latter as well, as the adults count as the minor’s guardians. Although the Shulchan Aruch does not pasken this way, since regarding the recognizable signature of their father it is considered confirmed, it is usable in regard to the minor as well. The fact that the time had not come to pay makes it easier to assume that if Reuven were going to pay early, he would have taken back the document even though it was not signed by witnesses.

Regarding the debts whose document did not give a time for repayment, it is a question to what extent we say that from the fact that Reuven did not ask for the document back, we see it was not paid. While a document without witnesses does not classically prevent the claim of repayment, some say that since in society, a document signed by the obligated is taken seriously, it is telling that Reuven did not demand it back. Especially in a case like this, where there are strong indications that the debts are still outstanding, we should make a compromise even regarding those documents.

What is difficult to factor in here is the idea that the older inheritors are viewed as guardians for the minor. Siblings cannot be guardians in such matters, as we must be cautious of the possibility of trickery, i.e., that he will have the money taken from the young sibling and share it with the alleged creditor. This is all the more so when the older siblings were not appointed as guardians.

In summary, it is possible to extract payment from the adult inheritors from all the documents but not from the portion of the minors.   
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