Malveh veLoveh - Chapter 12

This distinction applies provided none of the factors that were mentioned in Chapter 11, Halachah 6, apply. If, however, those factors apply, the debt may be collected. If these factors are effective with regard to a debt supported by an oral commitment alone, certainly they are effective with regard to a debt supported by a promissory note, even when the estate is inherited by minors (Kessef Mishneh).

The Ra’avad questions the Rambam’s ruling, maintaining that if, when composing the promissory note, the debtor agreed to a stipulation granting the creditor ne’emanut - i.e., that the creditor’s word should be accepted over that of the heirs - seemingly, the creditor would have the right to collect from the heirs, even if they are below majority. For even if they would lodge a protest when they come of age, the stipulation would give the creditor the legal power to override their protest.
The Ra’avad notes, however, that the Talmud (Arachin 22a) discussed this issue and did not mention the possibility of including a stipulation of ne’emanut. Therefore, he concludes that ne’emanut is not effective when the heirs are below majority.
The Maggid Mishneh accepts the Rambam’s ruling, but does not accept the Ra’avad’s rationale. He explains that the reason the Talmud does not mention the possibility of ne’emanut is that it is very rare for a person to include such a stipulation in a promissory note. If he included such a stipulation, however, on a theoretical basis, it would be acceptable. Nevertheless, even if such a stipulation is included, we do not allow the creditor to collect the debt, because it is possible that this stipulation was nullified by the debtor before his death. Hence, we suspect that possibility and allow the heirs to reach majority, at which time they are capable of protecting their interests in court.

Until the heirs reach majority, they do not have the intellectual maturity to protect their financial interests. Hence, we wait until they reach that age before concluding that they do not have any claims to disavow the promissory note.

Owed by an estate inherited by a minor.

The interest would have to be owed to the gentile, because if it were owed to a Jew, it would immediately be nullified by the court. The Rambam is speaking of an instance where the gentile is willing to have his case arbitrated by a Jewish court. Arachin 22a states that this law applies even if the gentile agrees not to collect the interest until the heirs attain majority.

Hence it is obviously in the best interests of the minor that the debt be paid.
The Ramah (Choshen Mishpat 110:1) quotes a responsum from Rabbenu Nissim that explains that a similar principle can apply with regard to a debt owed to a Jew. If the creditor is willing to waive a portion of the debt so that he will be paid immediately, the court may decide that it is in the best interests of the minor to accept the waiver. Hence it has the right to expropriate the money from the deceased’s estate and pay the creditor.

In his gloss on Hilchot Ishut 16:1, the Maggid Mishneh states that this law refers only to the money the husband promised the woman, but not to the money she brought to her home in her dowry.

The Shulchan Aruch (Choshen Mishpat 110:10) rules that although a woman is allowed to collect the money due her by virtue of her ketubah from the deceased’s estate, there is no need to appoint a guardian in this instance. The matter is straightforward, and there is no need to complicate the legal process.

Significantly, Rashi (Arachin, Joe. cit.,) offers a different interpretation of the concept of gaining favor, stating that through this generosity, men will gain favor in the eyes of women.
The Kessef Mishneh quotes the Rashba as saying that even if the woman is older and unlikely to remarry, she is granted the option of collecting the money due her by virtue of her ketubah.

We fear that if the woman does not have at least a minimum of financial resources, no one will desire to marry her.
Arachin, loc. cit., mentions another reason why the woman is given the right to collect the money due her by virtue of her ketubah: It is a benefit for the heirs. Until she remarries or receives payment for her ketubah, she is granted her sustenance from the estate of the deceased (Hilchot Ishut 18:1). Thus, paying her ketubah will be saving money for the estate, because ultimately she will receive that same sum anyway, and in the interim the estate will have had to pay for her sustenance. The Rambam also mentions this rationale at the conclusion of the halachah. He does not mention it at the outset, because it is relevant only with regard to a widow, but not with regard to a divorcee. For a divorcee is not entitled to sustenance from her ex-husband’s estate, even if she has not received the money due her by virtue of her ketubah (Kessef Mishneh).
The Kessef Mishneh adds that even if the estate does not contain anything more than the money due the widow, she is allowed to collect those funds so that she will have the opportunity to remarry.

I.e., barring any difficulties, she will ultimately be given the opportunity to collect the money due her by virtue of her ketubah. She must, however, wait until the heirs come of age, so that they can defend their positions in a court of law. Had she not married, we would have granted her extra consideration so that she could marry. Once she has married, however, her status is not different from that of any other creditor.

Once a woman remarries, she is no longer entitled to sustenance from her previous husband’s estate. Hence, the deceased’s estate is no longer suffering a loss because of her.

Hence, there is no need to grant her special consideration to increase her favor in the eyes of others.

Similarly, these views would maintain that a divorced woman should not be given the money due her by virtues of her ketubah until the heirs reach majority.

I.e., these opinions maintain that the two opinions mentioned in the notes on the previous halachah are mutually exclusive, and one does not accept the approach of the other. The Shulchan Aruch (Even HaEzer 96:1) follows the approach of the previous halachah.

From the standard printed text of the Rambam’s Commentary on the Mishnah (Arachin 6:2), it would appear that he shared this view, for he speaks only about the advantage to the estate, and does not mention the woman gaining favor in the eyes of others at all. However, in the revision of this Commentary, which he wrote at a later age, it appears that he revised his understanding of the matter and adapted it to reflect the rulings of Halachah 3.

Arachin 22b states that the rationale is the testator’s intent is not clear when he makes his statement, for there were several coins from different countries that were all referred to as a maneh in the Talmudic era (as we have American, Canadian and Australian dollars or Swiss and French francs). Therefore, a guardian should be appointed to argue on behalf of the heirs that the intended recipient should be given the lesser amount.

For this is one of the instances mentioned in Chapter 11, Halachah 6.

Specifying the maneh.

Since the testator specified exactly what should be given the intended recipient, there is no room for argument or discussion about the matter.
Rabbenu Yitzchak Alfasi and Rabbenu Asher differ with the Rambam regarding this issue and maintain that a guardian should be appointed for the heirs and be given the opportunity of advancing defenses on their behalf. More specifically, since a guardian will be appointed for the heirs regardless - in order to divide the estate equitably - it follows that he should be given the chance to defend their interests in this situation as well. Perhaps he can find a reason to negate the testator’s bequest.
Although the Shulchan Aruch (Choshen Mishpat 110:4) also mentions the Rambam’s opinion, it appears to favor the other views.

More precisely, if a serious claim to that effect was issued.

Through the testimony of witnesses.

This ruling is based on the Rambam’s interpretation of Arachin 22b. The Maggid Mishneh and other commentaries explain that the Rambam probably had a different text of the Talmud from the one that we use, because according to our text, when there are witnesses who testify that the property did not belong to the person from whom the heirs inherited it, a guardian is not appointed for the heirs. The rationale is that we do not suspect that the witnesses are lying, and there is no claim that can be advanced against the testimony of witnesses. The Maggid Mishneh explains that the Rambam’s intent is that a guardian be appointed to protect the interests of the heirs before witnesses testify in favor of the plaintiff. Once witnesses have testified, however, we do not wait for the guardian to advance claims on behalf of the heirs before we settle the matter.
Sefer Me’irat Einayim 110:13 and other authorities do not accept this compromise position and maintain that the Rambam differs with the other views. The Shulchan Aruch (Choshen Mishpat II 0:5) quotes both approaches, but appears to favor that of the other authorities. (Note, however, the Siftei Cohen 110:14, which supports the interpretation of the Maggid Mishneh.)
[Significantly, in his original drafting of his Commentary on the Mishnah (Arachin 6:2), the Rambam states that it is not necessary to appoint a guardian when there are witnesses who testify that a property did not belong to the person from whom the heirs inherited it. In the revised edition of that text, however, he states that a guardian should be appointed.]
The Tur (Choshen Mishpat 110) states that this law applies only when the testimony of the witnesses was delivered during the lifetime of the deceased, or the plaintiff produces a deed of sale that indicates that he had purchased the property from the deceased. We do not, however, begin to take testimony concerning such a matter if the heirs are below the age of majority. The Shulchan Aruch (Choshen Mishpat, loc. cit.), however, favors the Rambam’s understanding of the issue.

As the Rambam proceeds to explain, this is speaking about a situation where the minor has a claim to the property that might be justified by a court of law. Nevertheless, since the property was not in his possession and it was seized unlawfully, he must wait until he reaches majority to press his claim.

If his claim is legitimate, the property and all the profits gained from it will be expropriated by legal process.

Sefer Me’irat Einayim 110:14 states that a minor who maintains possession of property by force is allowed to retain it as his own, only when it is known that it belonged to his parents and that he himself lives there and maintains possession.

Such testimony would be sufficient to establish the person’s ownership of the property (see Hilchot To’en V’Nit’an, Chapter 11). Nevertheless, in this instance, we do not allow the testimony to be brought to court until the heirs attain majority.
The Maggid Mishneh notes that there are commentaries that question why this principle was not applied in the previous halachah, for in that situation as well, testimony is being presented against a minor. He explains that Halachah 6 refers to a situation in which the person from whom the heir inherited the property stated that it belonged to others before he died, or we are speaking about a property that is reputed to be stolen. In these situations, the property has not been established as belonging to the minor. Hence, we are prepared to hear the testimony of the witnesses.
Sefer Me’irat Einayim 110:17 explains that the difference is that in the previous halachah, the plaintiff is claiming that the property is stolen, while in this halachah, the plaintiff is claiming that it was purchased. He explains that the Rambam’s position is that since the purchaser’s word would be heeded if he produced a deed of sale, the fact that he does not produce such a legal document detracts from the strength of his claim. Hence, we postpone hearing the case until the minor comes of age.

I.e., even though the minor may be physically present, since he lacks the intellectual maturity to take responsibility for his affairs, it is as if he were not present.

For, as stated in Hilchot Edut 3:11, the authenticity of a legal document may be validated outside the presence of the principal it involves. Signing a legal document is equivalent to delivering testimony in court. Thus, it is as if witnesses had testified against the minors. Hence, the property is expropriated from them. If they desire to dispute this decision when they come of age, they can sue the person to whom the property is awarded.
It must be emphasized that Rabbenu Asher and the Tur do not accept the Rambam’s position. They maintain that even a signed legal document may not be used in testimony against a minor. According to their position, there is no distinction between the rules governing the case mentioned in this halachah and the situation described in the previous one.

There are 17 or 18 Mondays and Thursdays in a 60-day period. Since these are days when the court holds sessions, there will be more people who will come to the city and hear the announcements. Thus, it will be as effective as having made announcements for 30 consecutive days. In his Commentary on the Mishnah (Arachin 6:1), the Rambam writes that this is preferable.

The amount of produce it yields each year (Maggid Mishneh).

Arachin 21 b states that a creditor will be willing to accept coins that are broken or of lesser weight. Since he receives the approximate value of the money that is owed him, he is willing to compromise.

A woman is not necessarily in need of immediate funds, and in most instances will be willing to accept payment in installments over an extended period (ibid.).

This term refers to a court document that gives the plaintiff the right to expropriate property belonging to the debtor wherever he finds it. See Chapter 22, which discusses the factors concerning such a document in detail.

Ketubot 104b states that we fear that an heir may substitute his own field for the field that he inherited and have that sold by the court. After the person who purchases the field from the court will improve it, the heir will then produce proof that it was his own field that was sold and seek to reclaim the property, while embarrassing the court.

As stated in Chapter 22, Halachah 14, ordinarily, from the time the announcements are completed, the creditor may reap the proceeds from the field. In this instance, since the adrachta is invalid, the creditor may not benefit from the field.

This applies even if the heirs are past the age of majority (Kessef Mishneh).

As mentioned in Halachah 8.

They are considered to have erred in a matter that is of public knowledge. Hence the activity they performed, the sale of the property, is nullified. See Hilchot Sanhedrin 6:1.

If it is expropriated by another creditor, or it is discovered that it did not belong to the deceased.

Generally, when an agent makes an error, the sale that he conducts is nullified (Hilchot Mechirah 13:9). In this instance, however, since the sale is being conducted by the court, the court is granted greater legal power than a private individual, and the sale remains binding despite the error.
The Maggid Mishneh quotes the Ramban, who maintains that if the error is more than half of the property’s value, the sale is not binding. The Kessef Mishneh explains that this applies only according to the authorities who maintain that the laws of ona’ah (unfair gain) apply when landed property is sold for more or less than half of its value. According to the Rambam (Hilchot Mechirah 13:8), who maintains that the laws of ona’ah never apply to landed property, this qualification would not be in place.
The Chelkat Mechokeik 104:9, however, notes that the Ramban and the Maggid Mishneh do not accept the principle that the laws of ona’ah (unfair gain) apply when landed property is sold for more or less than half of its value. Hence he states that the principle stated by the Maggid Mishneh applies to all authorities.

100 zuz.

The Maggid Mishneh states that this law applies only in a situation where it is unnecessary to announce the sale beforehand, or with regard to articles whose sale need not be announced beforehand, as the Rambam continues to explain. If, however, their sale must be announced beforehand, and that was not done, the sale is nullified, as stated in the previous halachah.

Hilchot Mechirah 13:10 states: “If the court did not desire to nullify the transaction, but instead have the unfair gain returned, they may. For the legal power of an ordinary person should not be greater than that of a court.”

The measure of one sixth is chosen because people are generally willing to forgo a mistake of up to a sixth in the value of a purchase (Hilchot Mechirah 12:3).

As in the cases that the Rambam continues in this halachah.

The Shulchan Aruch (Choshen Mishpat 109:5) interprets this - albeit in somewhat of an extension of the simple meaning of the words - as referring to an instance where the court evaluated the property and then gave it to the creditor. This interpretation is necessary because in Hilchot Mechirah 13:11, the Rambam writes:
It appears to me that if a court sold landed property or servants belonging to orphans at [an unfair price], selling entities worth 100 [zuz] for 200, the purchaser cannot retract. For the legal power of an ordinary individual should not be greater than that of orphans. Similarly, if a guardian [of orphans] sells landed property or servants [at an unfair profit], the purchaser cannot retract [because of] the unfair profit, as is the law with regard to an ordinary individual.

Since the announcement was not necessary, the fact that it was made is of no consequence to us.
This opinion is quoted by the Shulchan Aruch (Choshen Mishpat 109:3). The Ramah quotes the opinion of the Tur, who maintains that if the sale was announced beforehand, we overlook the difference in valuation and the sale remains binding.

Or the heirs’ mother or any other relative whom they are obligated to bury (Maggid Mishneh).

For their sustenance is incumbent on his estate.

And if the time is taken to announce the sale of the property, the funds will not be available in time for the purpose for which it is being sold.
The Maggid Mishneh questions: With regard to burial, it is obvious that we will not leave the deceased unburied for 30 days. What then is the intent of the license granted?
He cites two possible resolutions:
a) We do not announce the sale even for a brief time, but instead proceed to sell it as fast as possible.
b) Even if the heir borrowed money for the burial. When repaying the loan, it is not necessary to wait 30 days before selling the property. If such a requirement were instituted, no one would desire to lend money for such a purpose.

As mentioned above (Chapter 11, Halachah 7), the movable property that heirs inherit is not considered to be under lien to a creditor. Nevertheless, this halachah can be interpreted as referring to an instance where the creditor seized the movable property beforehand (11:8), or in the present age, after the enactment of the Geonim that extended a creditor’s lien to include movable property (11:11).

Where one might receive a better price.

If, however, the marketplace is far from the city, the merchandise is not brought there even though a better price would be received, lest it be destroyed on the way by factors beyond one’s control.