Mishnah - According to Rashi ONLY. Also, there are many side issues related to this Mishnah (e.g., when the son was "modeh", to whom does the terms "brothers" and "sons" refer, etc..) The scope of my question does not include any of these other issues. I'd like to keep the issue very pinpointed.
QUESTION: Mishnah has case where son steals from father, father dies, and son is "modeh" after his father's death. The Mishnah offers two possibilities for this one scenario: A) The son will forfeit his "chelek" in the "yerushah" of the amount he pays back for the "keren & chomesh", presumably this is equal to 1/3 ("chelko" = 1/3). B) A way for him to save the amount of money he would lose under method A above. It would involve borrowing money, paying back his brothers, and the "baalei chov" collecting from the yerushah (possibly only from his "chelek"). How does the case work out that he saves "chelko", or 1/3 (the amount of money he would lose under method A above)? Different interpretations seem to make him either lose it all, or be 2/3 better off (not the amount of money he would lose under method A above, i.e., 1/3).
Daniel Gray, Toronto,Canada
The simple way of understanding is as follows. Let's assume that the Geneivah was 300 and that he had two brothers (three sons in total). Although he inherited a third of the Geneivah, and should only have to pay 200, since he must perform a Hashavah on the entire Geneivah, he must return the entire 300 to the brothers, thereby losing 100 of his inheritance. However, if he borrows money (against his portion (100) of the inheritance) and then repays the Geneivah (300) to the brothers, he has then repaid the entire 300. Although he himself may not take possession of his share of the estate (because of his obligation of Hashavah), his creditors can collect the debt of 100 from it. He will therefore save 100 (i.e. he paid back 300 but borrowed 100 against it, and he keeps the 100 that he borrowed since the lenders collect it from his portion of the 300; thus, instead of paying back 300, he effectively paid back only 200, saving 100).
However, Rashi writes in the end of his comments that the lenders "collect the rest of the loan from him," implying that the thief borrowed more than his portion of the inheritance -- i.e. he borrowed 300 (the total value of the Geneivah), and not just 100 (the value of his share of the Geneivah/inheritance). Apparently, Rashi is understanding the words "she'Ein Lo" of the Mishnah literally, saying that this son has no money or assets at all, and he has completely consumed the Geneivah. Consequently, he has to borrow money in the amount equivalent to the entire Geneivah in order to pay back the Geneivah. He thus borrows 300 and pays it back, and since 100 of that 300 is really his share (but he cannot take it because of his obligation of Hashavah), the lenders may collect that much of the debt from the other brothers, and the remaining part of the debt (200) they collect from his assets (when he has some), and thus he is saving 100 (since he borrowed 300 and he is only paying back 200 from his own pocket).
This, however, contradicts what Rashi writes in his previous comment (DH Ein Lo), because Rashi there explains that the brother does have money to pay back what he stole, but he does not want to lose his portion of the inheritance. Accordingly, he only needs to borrow 100. (Apparently, the two comments of Rashi are from two different Mahaduros. -M. Kornfeld)
(See Maharshal, who asks why Rashi at the end of the Daf does not explain simply that he borrowed money in the amount of his share , i.e. a third of the Geneivah/inheritance. See also Perishah 367:5.)
D. Zupnik, M. Kornfeld