Dear Sir(s),

My parents loaned my sister and brother-in-law over $200K, interest free, back in 1993 to purchase their new home. They made initial payments on the loan, but as they got bogged down with child rearing expenses and tuition costs, they stopped making payments, however, the expectation of the loan being repaid was never dropped. In 2001 my father z”l had a lawyer draft an agreement acknowledging the loan, but my brother-in-law refused to sign the document. My parents, not wanting to make waves, did not pursue the matter, but made it perfectly clear, on more than one occasion, that the loan was still outstanding, and that they expected to receive the full amount owing, either paid to them, or to their estate, whichever came first.

My sister is now in the throws of a divorce and we would like to call in the loan. My former brother-in-law is now claiming that the money was a gift and not a loan, and, therefore, is not owing to my mother. Although we do not have a formal contract, we do have the initial cancelled cheques showing that part of the loan was paid off, as it was intended to be, and we have the loan agreement drawn up by a lawyer in 2001, which my brother-in-law refused to sign. In addition, we have copies of Hebrew School subsidy application forms, (as late as 2009), in which my brother-in-law claims the mortgage as a liability expense, and payable to my parents, thus recognizing its existence.

I would like my mother to take my sister and former brother-in-law to a Beis Din to claim the loan prior to their dividing the matrimonial home. Given the information provided, does my mother have a good case for establishing that this was a loan and never a gift? Is this a case for a Beis Din?

Looking forward to hearing from you,

Answer:

It is certainly a case for beis din. Having said this, one cannot be certain of which way beis din will decide the case. A number of issues need to be considered:

1. When your father z”l passed away, his sons inherited his estate according to Torah law. If he made a tzava’ah, the clauses of the tzava’ah will usually be binding, but if the debt in question was not mentioned, it follows that the debt was inherited by his sons. This means that you, rather than your mother, will be the one who has to claim the debt from your sister and brother-in-law.

2. Another point to make is the question of shemittah. Since 1993 a shemittah year has certainly passed by (two, in fact), and this means that unless a pruzbul was written, it is possible that the debt cannot be reclaimed.

3. The third point is the question of whether it was a gift or a loan. Beis Din will examine the evidence, and come to a conclusion based on the evidence provided. If it cannot be proven that the money was given as a debt, for instance by bringing witnesses who know about it, then it won’t be easy to extract the money. However, the fact that he began to repay the debt is a strong indication, and the actual ruling cannot be easily predicted.

Best wishes and much success.

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