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Emor-Is a Son Required to Pay his Deceased Father’s Debts

 

Question

Our father recently passed away leaving behind many debts and nothing worthwhile to inherit. We should note that he lived a very frugal life, always struggling to make ends meet. The reason he left debts is because he borrowed money to cover medical expenses for himself and for our late mother. The people who lent him the money knew that he was poor so no one was deceived by him and if he could have, he would have paid them back. Are we, his children, required to pay back his creditors or not?

Answer

We should first make it clear that one who borrows money is required to repay the loan. Besides being crucial for the ensuing discussion it necessary to stress this point since, unfortunately, there are misguided people who try to avoid paying back their debts.

In addition to being very bad middos – being ungrateful toward one’s benefactor – it is a Torah violation. The Gemoro (Kesubos 86A) writes that there is a mitzvah to repay a loan and beis din forces borrowers to repay, if necessary. Rashi writes that the mitzvah is included in the mitzvah to keep one’s word since, when one borrows, it is understood that he is giving his word that he will repay. Moreover, one who borrows and does not repay is called a rosho by the pasuk (Tehillim 37, 21): “One who borrows and fails to repay is a rosho.”

The Gemoro writes in two places (Kesubos 91B, Bava Basra 157A) that children have a mitzvah to repay their deceased parent’s debts. However, in Kesubos it is apparent that even though the children have a mitzvah, nevertheless we do not force them to repay. In Bava Basra it is clear that we do force the children to repay.

There are two approaches among the Rishonim to resolve this seeming contradiction. Both approaches agree that the key difference between the two cases is what the children inherited. We will only discuss the majority opinion since it is the authoritative approach (CM 107, 1) and the second opinion is not even mentioned by the Shulchan Aruch.

Most Rishonim including Tosafos (Kesubos 86A), the Rosh (Kesubos 9, 14) and the Rambam (Malveh Veloveh 11, 4-8) explain that if the children inherited real property (land and immovable objects) we force them to use their inheritance to repay their parent’s debts. The reason is that when one borrows he automatically places a lien on his real estate. Therefore, when the heirs inherit this real estate they are inheriting it with the lien on it and the creditors can exercise this lien and force the heirs to repay.

However, when the heirs did not inherit real estate but inherited money or non-real property the Gemara rules that there is a mitzvah on the heirs to repay but beis din does not force them to do so. The rationale of this approach is that the mitzvah that requires the heirs to repay is the fifth of the Ten Commandments, to honor one’s parents. The reason we do not force the heirs to repay even though, as we mentioned earlier, beis din generally forces people to fulfill their mitzvos is that the Gemara (Bava Basra 8B) says that we do not force people to fulfill mitzvas whose reward is mentioned in the Torah. Since the Torah writes that one who honors his parents is rewarded with a long life, beis din does not force the heirs to show their respect by repaying their parents’ loans.

However, the heirs do have a mitzvah to repay. The reason (Rashbo Res 4, 152) that children who repay their parents’ debts are honoring them is that they are thereby enabling their parents to avoid being called reshaim, which, as we mentioned earlier, is the term applied to one who fails to repay his debts.

We should note that the Gaonim promulgated a takonoh whereby when one borrows money a lien is placed on all his property including non-real (movable) property. The reason for this takonoh was that in those places in those times many Jews could not own land. Therefore, in order to ensure repayment of loans the Gaonim ruled that an automatic lien is placed even on movable property. This takonoh remains in force. As a result, nowadays even heirs who only inherit movable property are required to repay their parents’ debts and beis din will even force them to repay their parents’ debts.

Where the parent does not leave behind any inheritance, the reason the children are not required to repay their parent’s debts is because of the general limitation of the mitzvah to honor one’s parents. The Gemara (Kiddushin 32A) rules that if it costs money for a child to honor his parents the expense is borne by the parents. For example, if a parent asks for a cup of coffee the child may tell his parent that while he is happy to prepare and bring the coffee, the parent must pay for the coffee.

Thus, if the children inherited something from their parents the children have a mitzvah to use the inheritance to honor their parents and repay their debts, since the children will not need to use any of their own money to repay the debts. However, if there is no inheritance the children are not required to repay since doing so will require them to use their own money.

Thus, we can answer your question: Since you did not inherit anything you are not required to repay your father’s debts. However, if you do repay you will honor your father and perhaps spare him being called a rosho.

In light of the above, the Aruch Hashulchan (107, 2) says that if the child has the means, it is proper (he calls it a midas chassidus) for him to come to terms with the creditors of loans where the parent is not blameless for failing to repay. One example he gives of where the parent is not blameless is when at the time he borrowed he did not have the means to repay. The other is where he had the means to repay for a while but failed to do so when he could have repaid, and later he no longer had the means to repay. The reason is that in these cases the parent has the status of a rosho.

In your situation, it is clear that your father does not have the status of a rosho for having failed to repay. This can be derived from the Shulchan Aruch (97, 4) who writes that one who take a loan and then squanders the money in a manner that he will be unable to repay is a rosho.  The Sema (97, 5) writes that one who borrows for an important reason is excluded from this ruling and the Taz (siman 97) writes that if the borrower used the money for the avowed purpose he is excluded. (Both the Sema and the Taz are cited by the Chofetz Chaim in the Ahavas Chesed at 2, 24 in the footnote.)

Therefore, your father who borrowed for medical expenses, a necessary expense, and also informed the lender of his true intention, definitely is not classified as a rosho. Thus, it would seem that even according to the Oruch Hashulchan you do not have to repay the debts even as a midas chassidus.

We should note however, that if you do repay the debts you will still be fulfilling a mitzva to honor your father since: 1-the Gemara says there is a mitzvah to honor even a deceased parent, and 2-it is clear that paying any debt of the parent is included in the mitzvah to honor one’s parent. The proof is from the fact that when the previously cited Gemara says that there is a mitzvah to repay a parent’s debt it is referring to all debts of the parents.

 

 

 

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