Translation:Shulchan Aruch/Choshen Mishpat/290

Paragraph 1- If one died, and was survived by minor inheritors, his wife was pregnant or he was survived by minors and adults, the deceased needs to appoint a guardian who will work on behalf of the minors until they become adults. If he did not appoint one, the court is obligated to appoint a guardian until they become adults because the court is the father of orphans. If the court itself wants to deal with the orphans’ needs, they may do so. If they need to divide or litigate with others because of the orphans, however, there are those who say they need to appoint a guardian so they not appear like attorneys. See later in Paragraph 8. This that the court is the orphans’ father is only minor orphans. The term “court” refers to those who were appointed in the city or the great leaders of the generation. Three regular people, however, cannot appoint themselves as a court over the orphans. If the deceased instructed that the minor receive his portion and do what he wants with it, he has that authority. Similarly, if the deceased appointed a minor, female or slave guardian for the minors, he has that authority. If one asks a dying person if he wants him to oversee his properties and the dying person says yes, that qualifies as guardian language. If one had a guardian on his properties, and he died, we do not leave that guardian for the orphans. Rather, the court would appoint someone appropriate because one is not considered a guardian whom the father appointed, except when he appoints someone close to the time of death. We do not allow a person who is unfit to be guardian to act as a guardian, even if he has possession of the properties, until he brings proof that the orphans’ father appointed him.

Paragraph 2- The court cannot, however, appoint a woman, slave, minor or ignoramus presumed to be suspect of sinning, as a guardian. Rather, we would seek a trustworthy, strong person who will know how to advocate for the orphans and make claims on their behalf, and who has the authority in the business world to guard their properties and turn a profit for them. We would appoint such a person as guardian over the minors, whether he was related to the minors or not, except that if he was related he cannot go down to the minor’s properties, as was discussed in Siman 285. The court can appoint their relative as a guardian if he is fit for the job.

Paragraph 3- When the guardian is appointed, the court needs to make a calculation with him and write down the amount of movable items, real property, debt and anything else they are giving him because we would have him swear on a certain claim. Thus, the court needs to know what he is receiving and what he will return. They write two documents, word for word. One is for the guardian and one is for the court on behalf of the orphans.

Paragraph 4- The guardian is permitted to wear nice clothing, paid for by the orphans’ properties, for the orphans’ benefit, in order that his words be accepted. This assumes the orphans receive benefit from their properties during the time his words would be accepted.

Paragraph 5- If the court appointed a guardian and heard that he was eating, drinking and incurring expenses over his standard of living, they should be concerned that he is eating from the orphans’ properties, and they would remove him and appoint another guardian. If the orphans’ father appointed him, however, we would not remove him because he may have found a lost item. If witnesses come and testify that he is causing a loss to the orphans’ properties, however, we would remove him and have him swear because he is causing a loss. There are those who disagree and say that even where the court appointed him we would not remove him unless witnesses came and testified that he is causing a loss. If a guardian lent out the orphans’ money to others which he should not have lent out, the court would remove the money from the borrower and give it to the orphans because if we are able to remove a guardian we are certainly able to remove a borrower that comes via the guardian.

Paragraph 6- The same is true with a guardian appointed by the orphans’ father who had a good reputation and was straight and pursued mitzvos and later became a glutton and drunkard who goes in the path of darkness, or he breached fences in promises or quasi-theft, and the court would be required to remove him, make him swear and find a valid guardian. All of the foregoing is based on how it appears to the judge, because each court is the father of the orphans.

Paragraph 7- When the court appoints a guardian for orphans, they give him all the real property and movable items that have not been sold. The guardian sends out, brings in, builds, destroys, hires, plants trees, plants greenery and does whatever he sees is good for the orphans. He feeds them, gives them to drink and gives them spending money that is appropriate for them. He should not give them too much and should not be too exact with them.

Paragraph 8- Money that the orphans’ father left for them does not require a guardian. There are those who say that even with respect to money we would appoint a guardian because he will make more of an effort with the money than the court would. Rather, what would they do with them? We would seek out someone who owns properties of high quality with a guarantee, who is trustworthy, listens to the Torah and has never been excommunicated, and we would give that person the money in court as an investment that has a high probability of profit and a low probability of loss. See Yoreh Deah Siman 160 on this concept. If he does not have real property, but gives them a collateral of broken gold that has no identifying mark, we would give him the money as an investment with high probability of profit and a low probability of loss. The court would set payment based on what the judges see, whether that is 1/3 of the earnings, ½ of the earning or even ¼ of the earnings going to the orphans, if they see that this is good for them. If they could not find someone whom they could give money for such an investment, they would use the money to buy food little by little until they could acquire real property with the money and give it to the guardian that was appointed for them. There are those who say that just like a guardian can give to others, so too can he accept money from himself so long as he does it in court so that lips do not prattle.

Paragraph 9- All the movable items of orphans need to be appraised and sold in court. This is only where a guardian has not been appointed on the orphans. A guardian, however, can do whatever he thinks is good for the orphans without the court. If one had orphans’ money in his possession and lent them on collateral from gentiles, and the guardian subsequently comes and says to bring them to the place where the orphans live because he can sell it there for a high amount, and the lender says he is concerned of complaints from the gentiles and he wants to give them what it is worth in his location, the orphans are in the right. If the market was close to their location, they would bring the items to the market and sell them. They would combine their money with the orphans’ money. If someone had orphans’ wine or beer in his possession and if he left it here it may sour, but if he brings it to the market an unavoidable accident many occur, he should do whatever he would do with his own items. The same applies to anything similar.

Paragraph 10- We do not send movable items or merchandise of orphans through the sea or any path where there is a concern of an accident occurring, except for beer that may sour or anything similar, as was discussed.

Paragraph 11- A guardian can sell animals, slaves, fields and vineyards to feed the orphans. He would sell animals before slaves and slaves before houses, all based on what the guardian sees is appropriate for the orphans. He cannot, however, sell them and leave the money. He cannot sell fields to purchase slaves or slaves to purchase fields because he may not be successful. There are those who allow him to sell slaves to purchase fields. He can, however, sell fields to purchase oxen to work other fields, because oxen are the primary element of fields. He cannot even sell an inferior and distant fields to use the money to purchase a good and close field, because the one he acquires may not be successful. A guardian cannot transfer orphans’ money in the presence of all three parties. If a third party transfers to the orphans in the presence of the guardian, however, he would acquire.

Paragraph 12- If a person has a claim against the orphans, the guardian cannot make a claim on their behalf to litigate, because he may be found liable in the litigation. If he went down to litigate and made claims on their behalf and won, however, the ruling is valid. The guardian is believed if it is known that the money belongs to the orphans because he has no stake in the matter. Thus, he is able to testify, as discussed above in 57:8. Although a court cannot make a claim on behalf of the orphans of something that is uncommon, even though the father could have made the claim, if the guardian made the claim, it would be valid. This that we say we make a claim on behalf of an inheritor is only where makes an uncertain claim. If he makes a certain claim, however, we would only judge based on what he claims. Thus, we would not make any claims for him until we hear his claims.

Paragraph 13- Guardians are not permitted to free slaves, even if he takes money from the slave to free him. He can, however, sell them to others and accept the money on the condition they set him free and the buyer will then set him free. This is all where he does not have permission of the court. If he received permission from the court, however, he can do whatever he wants.

Paragraph 14- Guardians can take off terumah and maaser from orphan’s properties in order to feed them because one cannot feed orphans something forbidden. He cannot, however, take off terumos just to have the fruits ready to eat. Rather, he should sell them as tevel.

Paragraph 15- Guardians can make a lulav, sukkah, tzizis, shofar, Torah scroll, tefillin, mezuzah and megillah for minors. The rule is that he can make anything that is a positive commandment that has a set amount, whether it is a biblical or rabbinical commandment, even if the only obligation they have in this mitzvah is in order to train them. We would not, however, have the orphans give charity, even to redeem captives, because these mitzvahs have no set amount. If the guardian set an amount on them in order to make them prestigious so they have a good name and they have the resources for that, however, that would be fine. If one became insane or a deaf-mute, the court would place a requirement on him to give tzedakah if he was fit to do so. See above 163:4.

Paragraph 16- When the orphans become adults, the guardian would give them the money of the deceased. He does not have to make a calculation with them as to what he brought in and what he spent. Rather, he tells them here is what is left, and he would swear while grasping a holy item that he did not steal at all. When is this true? Where the court appointed him. If the father appointed the guardian, however, or any other person who bequeathed to the orphans, the guardian would not swear on an uncertain claim. There are those who say that because he doesn’t swear, a guardian appointed by the father needs to provide an accounting, and this is the appropriate practice. We place a general cherem on anyone who takes from orphans. If Reuven says he has Shimon’s money and says he was instructed to give to his sons and he wants to give to each son equally they cannot make him swear because he is like a guardian appointed by the orphans’ father. If he only wants to give to some, but not all of them, however, he has now acknowledged that he is not a guardian on them, and they can have him swear that he did not keep anything for himself. If the orphans are minors, the court would appoint a guardian for them and he would swear to him. Such a guardian would, however, swear on a certain claim. Similarly, if one misplaced anything from the orphans’ properties, he would swear a guardian-oath. If the guardian has a share of the profit, even if the orphan’s father appointed he would swear on an uncertain claim.

Paragraph 17- Although we mentioned that the guardian does not have to make a calculation, he must make his own personal calculation to be exact and careful from the father of these orphans who “rides the clouds,” as the verse states, “praise to the one who rides the clouds. . . the father of orphans.” A guardian that was appointed by secular court must give an accounting because that is secular law.

Paragraph 18- A court cannot appoint a guardian with a condition to believe him without an oath, unless they cannot find an appropriate person who wants to be guardian except if they believe him without an oath.

Paragraph 19- When they have the guardian swear the mishnaic-oath, the court or the orphans must make a claim, which can even be an uncertain claim, of two silver and a perutah, and the guardian must deny two silver and confess on the perutah. If there was no claim, denial or admission of this amount, however, and they made a certain claim against him, he would swear a heses oath and we would roll in an oath that he did not retain anything for himself.

Paragraph 20- A guardian, whether appointed by court or the orphans’ father, is exempt in a case of theft or misplacing, but is liable in the case of negligence. If a guardian made a claim in court that he should not have made, and because of that the orphans’ counterparty was required an oath, and had the guardian claimed properly, the orphans would have sworn, that is not considered negligence because who is to say that they would swear. Negligence is only where the counterparty took without an oath and had he claimed properly the orphans would have taken without an oath.

Paragraph 21- If the orphans’ guardian purchased an ox for them, and it did not have teeth, and the shepherd placed it with the other oxen and did not realize it was not eating, and the animal died, that is not considered negligence by the guardian, and he would be exempt. Whom the orphans can collect from is discussed in 232:18.

Paragraph 22- The law of a guardian that borrowed on behalf of the orphans is discussed in Siman 110.

Paragraph 23- A guardian, whether appointed by the orphans’ father or the court, before he takes possession of the orphans’ properties and did not yet deal with their needs, is able to retract. Once he takes possession of the orphans’ properties or started dealing with their needs, he can no longer retract. This is only where he remained in the city. If he is leaving the city, however, he brings the properties to court and they will appoint someone else.

Paragraph 24- If minor orphans themselves arrange for support from a homeowner and he works on their behalf, he has the status of a guardian for all matters, even if it they are supported by a woman. There are those who say we could not have him swear, while others say we would have him swear. If a minor was supported by his mother and the court saw it fit to be stringent with her and have her given an accounting or some other stringency, that would be permitted because there is no concern that she would then refrain from acting as guardian because a mother is certainly very close with her son and would not refrain on this basis.

Paragraph 25- If orphans are supported by a homeowner and he feeds them from his own pocket, he has not put his money on the horn of a deer. The same is true of one who says he lent to orphans. If he supported them as a way of doing kindness, however, they would be exempt.

Paragraph 26- When a minor becomes an adult, even if he eats and drinks more than he should and is actively losing money and going in a bad path, the court would not withhold his money from him and would not appoint a guardian for him unless the person who bequeathed to him instructed not to give him unless he was good and successful or not to give him for a long time. Nonetheless, we would still rebuke him and teach him to go in the straight path and the ways of the righteous. If one appointed a guardian for his adult sons, they can say we do not need a guardian, unless the rule of it is a mitzvah to fulfill the words of the deceased is applicable. See above Siman 252.

Paragraph 27- A fool and deaf-mute have the status of minors and we would appoint a guardian for them.

Paragraph 28- If a guardian died and his son produced his father’s ledger that said he spent a maneh on feeding the orphans, we would not remove money from the orphans on this basis because maybe he was paid back and did not erase it. While he is alive, however, he is believed on what he says he lent to them and would collect with an oath.