Question
I am owed money by a person who is not in a very good financial situation and I told my wife that I wouldn’t collect the debt. Afterwards, considering my own financial situation, I had a change of heart and decided that I want to be repaid. The only ones present at this conversation were my wife and I and we never informed the borrower that we forgave his debt. Can we still collect the loan?
Answer
Before discussing your case, which is not discussed by the major commentaries, we will discuss the more basic case where not only the borrower wasn’t informed of the lender’s decision, but the lender didn’t even state his decision verbally but just decided in his heart.
The issue is discussed by the Ketsos (12, 1). He cites a ruling of the Maharshal that even if the lender just made a mental decision to relinquish the debt, it takes effect. The Maharshal proves this from a section of Gemoro (Kesubos 104A), where the Gemoro rules that, under certain circumstances, if twenty-five years elapsed during which a widow did not ask to be paid the money that the orphans owe her as payment for her kesubo, she is no longer entitled to be paid her kesubo since it is clear that she meant to forgive this obligation and made a mental decision to forego the debt. Thus, we see that if it is clear that one who is entitled to collect a payment decided that he does not intend to do so, he may not collect payment in the future since he made a mental decision to forego the debt.
The Ketsos deflects the proof of the Maharshal since in the case of the kesubo it is clear to all that the widow meant to waive payment of her kesubo and things that are clear to all are equal to speach. However, where it is not clear to all, since thought only constitutes devorim she’belev, it cannot affect legal status since only explicit speech can effect a legal change. Thus, the Ketsos disagrees with the Maharshal’s ruling. We note that many Acharonim agree with opinion of the Ketsos.
Returning to your question, if one follows the opinion of the Maharshal, when you made up your mind to forego payment of the loan you waived your right to collect the loan and even if you had not discussed it with your wife, the loan would be canceled.
However, since many Acharonim side with the Ketsos, we must consider whether by speaking to your wife you fulfilled the Ketsos’ requirement to verbalize your mechilo. At first glance, it would seem that it does, because the basis for the Ketsos’ ruling was that anytime one wishes to effect change he must verbalize it, and relinquishing a debt is one application. The Ketsos cites as examples one who renders an object hekdesh-holy or hefkeir-ownerless. In those cases, it would seem to suffice if one verbalizes.
For example, if one lent his animal to a gentile and the gentile failed to return the animal prior to Shabbos as per their agreement, one must render his animal hefkeir before Shabbos in order to avoid the Torah prohibition of having his animal work on Shabbos. The SA (OC 246, 3) rules that it suffices if he renders it hefkeir privately with no one else present. The MB (246, 16), based on the Rosh, explains that even though normally we do require the presence of two witnesses to render the hefkeir effective, that is a rabbinic requirement which is relaxed to avoid an aveiro.
However, the Gemoro (Nedorim 45A) writes that one must be mafkeir in front of one person. Many Rishonim, unlike the Rosh, understand that this is the Torah requirement. In fact, this is the only opinion that is cited in the laws of hefkeir (CM 273, 7) where the SA follows the approach of the Rambam (Nedorim 2, 16) that if hefkeir is done privately it is totally ineffective. The Kesef Mishna writes that this is the clear implication of the Gemoro since if the Gemoro holds that hefkeir can be affected privately it wouldn’t have said that one suffices, since the Gemoro always states the most far-reaching ruling that it can.
The Sema (note 10) explains that the reason it is necessary to be mafkeir in the presence of another is because otherwise the one who was mafkeir can deny the fact that he was mafkeir. It would seem that this argument would apply to your situation as well-since the borrower was not present and you could deny your mechilo, the mechilo should not be valid.
Similarly, the Kesav Sofer writes that the reason why hefkeir requires the presence of at least one person is that since if no one is present the mafkeir can deny it, therefore his act of hefkeir was not serious and therefore it is invalid.
However, there seem to be counterindications as well. If A picks up an ownerless object on behalf of B, B automatically becomes the owner of the object. The SA (269, 1) rules that even if the one who picked up the object did not say anything to the one for whom he picked it up, nevertheless it belongs to the one on whose behalf it was picked up. There is a dispute between the Sema who says that the one who picked it up must verbally say that he is picking it up for the beneficiary and the Shach who says it suffices if that was his intention even if he didn’t say anything and just admitted later on that this was his intention.
However, one can differentiate by noting that in this case the act was done by the one who picked it up which made the object become the possession of the one on whose behalf it was picked up. Therefore, even if the one who picked it up could deny it, nevertheless, it belongs to the beneficiary since it is like he did an act of acquisition. Just like the one acquiring the object can do the action so too another can do it on his behalf. In contrast, by hefkeir, if it is not valid nothing legally transpired.
The Divrei Geonim (57, 1) discusses this issue and cites the Aruch Hashulchan (CM 12, 5) who viewed this question from a different angle. He says that it depends on the nature of mechilo. There are opinions that view mechilo as only an act of relinquishment. Until the mechilo the borrower owed money to his lender and when the lender is mocheil he merely relinquishes his claim and that frees the borrower from his obligation to repay. However, there are opinions that when the lender is mocheil he gives the borrower the loan.
He notes that an issue that hinges on this dispute is in case the borrower is a minor. If when one is mocheil he is merely relinquishing the borrower’s obligation, then even if the borrower is a minor, the obligation is relinquished because the borrower does not play an active role in the act of mechilo. However, if when one is mocheil he gives the borrower the loan, if the borrower is a minor the act does not take effect.
Similarly, he claims that if the lender was not present when the lender was mocheil, if the lender is only relinquishing the loan, it is effective because the borrower does not play an active role in mechilo. However, if the borrower must play an active role in mechilo, his presence is required in order for the mechilo to take effect.
The Divrei Geonim cites the position of the Kesei Eliyohu who proves that mechilo is effective even if it took place not in the presence of the borrower from the famous story of Rochel and Rabbi Akiva. When Rabbi Akiva returned home after twelve years in Yeshivo he did so in order to fulfill his marital obligation towards his wife. However, when he overheard his wife say that she allows him to remain away another twelve years, he accepted her offer since her statement showed that she was mocheil R. Akiva from his marital obligation even though it wasn’t done in his presence.
Another source that discusses the issue is the Beis Meir (EH 38, 35) who discusses the issue and remains undecided if mechilo is effective if it was done not in the presence of the beneficiary.
Thus, there is no clear-cut ruling. However, perhaps one can decide that since according to the Maharshal certainly the mechilo was effective and according to the Ketsos it is not clear, one should treat it as effective.
