Wednesday, December 30, 2009

Collecting a Debt from the Brothers

It was stated: If brothers split an inheritance, and a creditor took one of their portions, Rav says that their division is nullified (and they divide the remaining estate). Shmuel says: The brother lost his portion. Rav Assi says: The brother whose possessions were seized should take a quarter of his brother’s land or one quarter of money. [The other brother has the right to give one-quarter money or one-quarter land.]

Tosfos asks: What gives the creditor the right to collect his debt from only one of the brothers? Isn’t the responsibility to repay the father’s debt equally shared by both brothers? He should not be able to seize property that belongs to one, and not the other!?

Tosfos answers: We are referring to a case where the father made this particular land into an apotiki. (A person may designate any type of property as security to the creditor without placing it in the possession of the creditor. The creditor has a lien on this property, and if the debt is not otherwise repaid, the creditor can collect his debt from the security. This security is called an apotiki.) It is this land that the creditor wishes to seize. Tosfos continues that it cannot be speaking that the father told the creditor, “You can collect from any other place,” for if so, he would not be able to push off the creditor by paying him with money.

The Rosh (Bava Kamma 1:6) writes that the halachah which requires the creditor to collect equally from all the brothers is only if he is able to collect a complete field; but he is not required, however, to take half a field from one brother and half from another. The reason for this is because it is not a proper payment and lenders would refuse to lend money. Accordingly, the Pilpula Charifta writes that it is not necessary to interpret the Gemora to be referring to an apotiki. Rather, we can say that if the creditor would not collect the property of one brother, he would be compelled to take half a field from each brother. It is for this reason that he has the right to take the field from one of the brothers.


Dividing an Inheritance with an Unknown Brother
When a person dies, his inheritance is divided by his sons by means of a lottery. However, there are times when the sons must divide the inheritance a second time. Below are two scenarios.

Two brothers that divided an inheritance, and then along came a third brother whom they never knew existed, the halachah is that the entire dividing is void, and they split the inheritance again; this time - including the third brother.

This is true even if the two brothers had inherited three fields, and had divided it between themselves, and each brother received a whole field and half of the third. Then the third brother made his appearance and his lot fell on the third field that was split. Even if the third brother is happy with this arrangement, any one of the brothers may void the entire dividing of the inheritance, and they must all draw lots again. Furthermore, even if the third brother is satisfied with the third field even without having to draw lots, any one of the brothers may void the splitting of the inheritance. The reason for all of this is, since originally, it was a mistaken division, the entire lottery can be voided.

Another scenario would be, if after dividing the inheritance, one of the fields got taken away by a person who lent their father money and now is collecting his debt. Here too, the division is voided, and they all once again draw lots to divide the inheritance.