Claiming for Orphans - Rav Ofer Livnat

Publicized in the weekly leaflet Hemdat Yamim - Eretz Hemdah

There are situations in which the defendant is not able to respond to the claims of the plaintiff. One of the more common cases is where a person dies, and someone sues his heirs claiming that the person who died owed him money, and he wants to collect the debt from the inheritance. If the person was still alive, it is possible that he would have denied the claims of the plaintiff, but the heirs have no knowledge of the matter and cannot defend themselves. The Gemara states that, in such a case, the Beit Din claims for the heirs what the deceased could have claimed if he was alive.

This week in the Daf Hayomi (70b), the Gemara deals with such a case. The case is of a person who was watching a certain amount of money for someone, and then he passed away. The depositor sues the heirs for the money, and he brings proof of having deposited the money. The Gemara states that, since the deceased could have claimed that he returned the money to the depositor (in which case the burden of proof falls on the depositor), the Beit Din claims for the heirs that the money was returned.
The Rishonim deal with the question of what happens if the depositor has proof that the money was not returned. In this case, the deceased could still have claimed that he lost the money in circumstances beyond his control, and he would be exempt from paying. Does the Beit Din here too claim for the heirs that the money was lost in circumstances beyond one's control?

According to the Tosafot (d"h M"d), the Beit Din will not claim for the heirs that the money was lost in circumstances beyond one's control. Their reasoning is that Beit Din only claims reasonable and likely claims. It is unlikely that money is lost under such conditions that the guard would be exempt. However, that the money has been returned is likely and, therefore, the Beit Din is willing to make such a claim.

The Ramban (Milchamot 37a in the pages of the Rif) disagrees. He says that Beit Din will make any claim that the deceased could have claimed, even if it is an unlikely one. Therefore, even if the depositor has proof that the money was not returned, the Beit Din will still claim that the money was lost in circumstance beyond one's control.

:Summary and Ruling

The Shulchan Aruch (Choshen Mishpat 108, 4) quotes both opinions, the opinion of the Tosafot that Beit Din does not claim for the heirs unlikely claims, and the opinion of the Ramban that Beit Din claims all possible claims. The Shach (ibid, 8) rules like the Ramban. However, in a number of places (for instance 62, 15) the Shach rules that regarding totally unlikely claims, even the Ramban will agree that Beit Din will not claim for the heirs.

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