Business Halacha: Chapter 5 and Jewish Creditors


bank-of-americaQuestion: A Jewish debtor filed Chapter 5 (bankruptcy). Does the court settlement exempt him also from his Jewish creditors according to halacha?

Answer: Bankruptcy settlements generally entail compromises on the part of the creditors to accept partial payment of their loans. For a compromise to be binding in halacha, it must be accompanied by an act of kinyan (e.g., sudar, handshake, or formal contract) to give it binding status. (C.M. 12:7)

In addition, there is a discussion whether a compromise that was coerced on the other party is valid. (12:11) However, if the person actively took part in the settlement process, this is indication of his agreement to the settlement.

Therefore, only if the creditor made a kinyan and took an active part in the bankruptcy settlement would the borrower be exempt according to halacha. Otherwise, the debt remains, even if a long time passed from the loan. (98:1)

Nonetheless, since the bankruptcy settlement has secular legal status, some maintain that the rule of dina d’malchusa dina applies here. (Igros Moshe C.M. 2:62; see, however, Chelkas Yaakov C.M. #32)

Furthermore, for loans involving businesses, there is an additional consideration of the common commercial practice (minhag hasocharim). Businesses and corporations general lend in accordance with the accepted business practices, so that a loan involving a business would generally be subject to the common commercial practices and prevailing laws. (Pischei Teshuva 12:19; Pischei Choshen, Halva’ah 2:26)

Authored by Rabbi Meir Orlian

These articles are for learning purposes only and cannot be used for final halachic decision.

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