The gemara speaks about the mitzvah to repay a loan, as if there is no shi'bud on the property, rather deals with it entirely from the perspective of mitzvah. There are various mehalchim to work out this gemara with the concept of shi'bud being a deoraysa right of collection in din, totally exclusive from the aspecto of mitzvah. Tosafos lays down the rules: 1. Orphans who inherit and are ketanim do not have to repay the father's debts even if they inherited property. 2. Orphans who are gedolim, it depends: if they inherited property they have a mitzvah to pay and can even be forced to pay (this is the case the gemara speaks about), but if they did not inherit property then they have a mitzvah to pay but cannot be forced to pay (this is assuming that they inherited at least metaltalin, but if they did not inherit anything they do not have a mitzvah to pay since kibud av is only at the father's expense, not at their expents - hagahos ashri).
If the mitzvah to pay is for kibud av and therefore we cannot force (since it is matan seachara b'tzida), how can we force when they inherit property? It can't be that the forcing when they inherit property is not "mitzvah" related, rather a legal shi'bud, because orphans that are children should then be obligated to pay as well, yet they are not! Furthermore, Rashi speaks about a mitzvah of keeping your word, whereas Tosafos speaks about a mitzvah of kibud av, why?
It seems to me that there is a mitzvah on the father to keep his word and pay back a debt. When the orphans inherit property from the father they assume the mitzvah obligation to keep the father's word and pay back the debt - not as a mitzvah of kibud av, rather they inherit the "mitzvah" that comes with the land. Therefore, adult orphans who have to do the mitzvah, are obligated and even forced to pay back (that is the case the gemara is speaking about when it says that we force for a mitzvas aseh), but children orphans who do not have an obligation to do a mitzvah are not required to pay back the debt. However, if the father died and did not leave over property, but did leave over metaltalin, then they do not inherit the mitzvah of repaying their father's debt, but there still is a kibud av obligation to pay. When the mitzvah is only kibud av, there is a mitzvah but we don't force since it is a mitzvah that has matan sechara b'tzidah.
It still need a hesber to explain why when they inherit property to they automatically inherit the mitzvah of keeping their father's word, even without the mitzvah of kibud av, but when they inherit metaltalin their entire obligation is based on kibud av?
3 comments:
The sm"a (C.M. 107:1) explains the difference between when the father leaves over property or just metaltalin to be whether the lender has smichas da'as to collect from it, meaning that on karka there is a shi'bud but not on metaltalin. He does not deal with it from the perspective of the mitzvah at all. Regarding the mitzvah he says it is a mitzvah of kibud av, that is why we don't force for it. However, he quotes a Ramban who says that beis din actually has the right to force even for a mitzvah aseh shematan sechara b'tzidah, just that they normally don't use this power. The shach claims that all rishonim agree with this principal. However, the Nesivos argues and says that for beis din to force the yesomim to pay metaltalin would be gezel from them, because although they have a mitzvah obligation, the most you can do is force until they "consent" to pay (as sheyomar rotzeh ani), but to actually collect from them against their will cannot be done. R' Shlomo Kluger in his comments on shulchan aruch proves that even this cannot be done, rather any mitzvah where the matan sechara is written by it, the torah wants it to be done entirely b'ratzon without force, therefore we cannot even use force to make him consent.
a few points based on looking onto the shita:
א: בשיטה משמע שמצוות הכיבוד של היתומים לא הוי ממש מ"ע של כבוד אב ואם אלא דין דרבנן של כבוד אב, ולכן יהיה שייך כפייה מדרבנן
ב: כל השאלה בגמרא למ"ד שיעבודא לאו דאורייתא, ולתוספות נ"ל שסברו דאפילו למ"ד שיעבודא לאו דאורייתא עדיין שיעבוד הגוף יש ולכן בבע"ח עצמו פשוט שייך כפייה, רק דאין למלווה שיעבוד הגוף על היתומים
ג: רש"י איירי בבע"ח עצמו ולא ביתומין, דהיינו לרש"י השאלה אף באבא מנין הכח של כפייה אי ס"ל שיעבודא לאו דאורייתא ורק הוי דין של מצווה, ואף שפשוט שב"ד כופין אך שאלת הגמרא מנין הכח, ולא ס"ל לרש"י שיש ישעבוד הגוף וצ"ע
ד: עוד צ"ע ברש"י מדוע לא חשב המצווה הפשוטה שהראשונים מביאים מהפסוקים של פרשה של משכון שמוכח שיש דין לשלם חוב, ועוד הקשו על רש"י ע"ש
1. this is a mixture of rashi and tosafos. From tosafos it comes out that we force on rabbinic mitzvos and from rashi it comes out that we don't. This opinion says that there is no rule.
2. The Rosh is clear that he is working the sugya even if shi'bud is d'oraysa, and tosafos uses the same mehalech.
3. i agree. but it is possible that when there is karka we extend this obligation to a child even without kibud av, simply because he inherited both the zechus and chov on the property.
4. R' Akiva Eiger points out that rashi's source for repaying a loan does not seem to be the maskana in baba metziah 49a.
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