Tuesday, January 12, 2010

Baba Basra 145b - Shevi'is Being Meshamet a post-dated check

The gemara says that shemita nullifies loans, but doesn't nullify shushbinus. Tosafos assumes that shushbinus is really the same as stipulating that the borrower doesn't have to pay back for 10 years, which the gemara in makos 3b quotes 2 versions as to whether shemitah nullifies it. There is a machlokes rishonim which version we pasken like. Tosafos, as well as the Rosh in makos hold that we pasken that shevi'is doesn't nullify such a loan. Why would we pasken like the more lenient approach? Tosafos says that this gemara supports the more lenient approach that there isn't any prohibition against collecting the loan after shevi'is, just as shushbinus can be collected after shevi'is.
The Rosh in Makos says that the rationale for the lenient p'sak is that shemitas kesafim nowadays is only d'rabonon and we have a rule that safeik d'rabonon l'kula, which entitles the lender to collect. The difficulty with the Rosh is, why do we view it from the perspective of the lender where it is a leniency that he may collect, we should look at it from the perspective of the borrower who is muchzak in the money and be lenient with him by exempting him from paying it back?
The Sha'ar HaMishpat in Choshen Mishpat suggests that the Rosh holds like the sefer yerei'im that shemita isn't an automatic annulment of the loan. Rather it is a mitzvah on the lender to say he is me'shamet, and that declaration annuls the loan. Therefore, it is not a monetary issue where in a case of safeik we are lenient on the muchzak by exempting him from paying, rather it is an issur issue where we are lenient on the lender from making the declaration so that the borrower must pay back. However, all rishonim reject the approach of the sefer yerei'im and hold that the loan is annulled automatically. Therefore, the Rosh must be holding that Shemitas kesafim is regarded as an issur v'heter issue, just that it impacts monetarily. We follow the rules of safeik l'kula, meaning that there is no issur on the lender to collect, and as a result allow him to collect the loan by forcing the borrower to pay.
What is the halacha if the borrower gives the lender a post dated check that is dated for after shemitah? Certainly according to the opinions that when the date of payment is for after shevi'is the lender would be able to cash the check after shevi'is passes because it is as if the lender stipulated that the loan is only due after shemitah. Furthermore, R' Moshe (c.m. 2:15) holds that if the borrower would give the lender a post dated check, dated for after shemittah, the lender would have the right to cash it even if a 10 year loan, would be nullified by shemitah. His rationale is that a post dated check is equivalent to paying back right away, even though it isn't regarded as money, since it is illegal for the borrower to bounce the check. Therefore, if the borrower gives the lender a post-dated check for after shemitah, even if he would bounce the check when the lender tries to cash it after shemitah, it would be as if a new loan was created by the bouncing of the check so the lender would be able to collect.

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