The gemara has a discussion whether shi'bud is d'oraysa or only d'rabonon. The Rashbam quotes pesukim in the context of mashkon, implying that the discussion of shi'bud being d'oraysa or d'rabonon is even in regard to collecting from the borrower himself. Tosafos rejects this approach because even the opinion who holds that shi'bud is not d'oraysa, would hold that the shi'bud that gives the lender the right to collect from the borrower would certainly be d'oraysa. The entire discussion in the gemara is whether the right to collect from those who purchased property from the borrower is d'orasya, but all would agree that the borrower himself is obligated to pay whether he has money or not.
It is clear from Tosafos that the borrower himself is forced to pay with whatever he has, even against his will. It is not clear from Tosafos where this right comes from. If shi'bud is not d'oraysa, what halachic concept enables the lender to collect from the borrower even against his will?
The Ketzos (39:1, towards the end) quotes from the Ramban in our sugya that since the borrower has a mitzvah to repay a loan, we can force him to repay based on the din of כופין על מצות עשה. The Ramban understands that if we can physically force him to do a mitzvah, we can certainly confiscate property which is a lower level method of force - דכיון שכופין אותו לקיים למה יכופו אותו ע"י הכאה, טפי עדיף הכפיה בהורדת נכסים. Therefore, the right to collect from the borrower even against his will is not dependent on shi'bud being d'oraysa. With this the ketzos explains the Rambam (matnos aniyim 7) who says that if a person is not giving enough tzedaka we are confiscate property from him. The Ran cites the Rashba who disagrees. The Ran compromises and says that if he is here and refuses to give, we confiscate property, but if he is overseas we don't confiscate property. The Ketzos asks, what is the rationale behind this distinction? If we have a right to confiscate property we should do so even not in his presence? Based on the Ramban, it is understandable. The right to confiscate property is based on the din of "kofin" - forcing to fulfill a mitzvah. We can only force him to do a mitzvah in his presence, but if he isn't here we can't force him to do a mitzvah.
What does the ketzos mean? Why does the concept of "kofin" only apply when he is present, even if he is overseas we should be able to confiscate property to force him to fulfill the mitzvah? It seems that the ketzos understands that when we force someone to do a mitzvah, it only makes sense if he will actually be making a decision to do the mitzvah. Even in his presence, one can argue that forcing him physically to make a decision to give tzedaka is understandable, but to confiscate property doesn't make sense because he is not doing anything. How can we force him to give, when he isn't giving at all, we are just taking? The answer is that when he sees us taking his property for tzedaka and realizes that he has no way out, we assume that he will make up his mind to "give", just as when he is physically forced. But, if he is overseas and completely unaware that he is "giving", that doesn't qualify as giving at all, rather we are "taking" and he would not be fulfilling any mitzvah. This is not dependent on the concept of mitzvos requiring kavana, it is far more fundamental. Even if mitzvos don't need kavana, it only qualifies as a mitzvah if the person has some involvement, either doing an action or making a decision. Confiscating property that he is unaware of would not be considered doing a mitzvah, therefore when he is overseas the beis din doesn't confiscate his property.
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