Nachalot - Chapter 7

A non-Jew’s testimony is not acceptable evidence in court. Nevertheless, statements that he made in the course of conversation - i.e., when he does not know that this information is significant to Jews - are accepted in certain situations. Nevertheless, such leniency is not granted in the situation at hand.

Leniency was granted in these situations to allow a woman the possibility of remarrying, because it is likely that sooner or later the details of the matter will come to light. Hence, at the outset, a person would not make statements concerning such matters if they were not true (Hilchot Gerushin 13:29).

Although this is also a financial matter, the gentile’s word is never~heless accepted. For the standard text of a ketubah states: “You may collect the amount here when you marry someone else” (Yevamot 116b).

The rationale is that since there are severe penalties if a woman remarries and then her first husband is discovered to be alive, we assume that the woman would not remarry unless she thoroughly investigated the matter. With regard to financial matters, however, we fear that the heirs will not take that much caution before reporting a person's death (Sefer Me'irat Einayim 284:2).

For she is not an acceptable witness. As mentioned above, leniency was granted in allowing her to remarry, but not in dividing her husband’s estate.

As is required to fulfill the mitzvah of yibbum.

We have translated the verse in the spirit of Yevamot 24a, which uses it as a proof-text to demonstrate that the brother who marries the widow inherits the deceased’s estate. Yevamot 117a states that as a result, even in a situation where the testimony regarding the deceased’s death would not be acceptable, since the brother marries the widow, he is granted the estate.

I.e., an ocean, lake or river where it is impossible to see the shore. (See Yevamot 121a.)

I.e., they watched for a period sufficient for him to have drowned without seeing him emerge from the water, and his body was not discovered afterwards.

After the fact, even in such a situation, if the woman did remarry, she is permitted to remain married to her second husband (Hilchot Gerushin 13:19).

As the Rambam explains in the latter portion of the halachah, in this situation, since the probability is high that the person did in fact die, our Sages feared that a woman would not make a thorough enough investigation and would remarry before receiving definitive proof. Because of the seriousness of the prohibitions involved, our Sages did not give her license. With regard to financial matters, however, they were willing to rely on the statistical probability.
The Ra’avad mentions that a wife is not allowed to collect the money due her by virtue of her ketubah in this situation. For in her case, the financial settlement cannot be separated from the license for her to remarry. See Hilchot Ishut, the conclusion of Chapter 16, Hilchot Gerushin 12:15-16 and 13:17-21, where the Rambam discusses these issues.

See Hilchot Gerushin, Chapter 13, where the Rambam describes these and similar situations.

I.e., the prohibition against adultery. If the woman's first husband is not dead, her relations with her second husband are adulterous.

Implied is that we would not give them these privileges, but since they took them, we will not remove them. Unlike the situation described in the following halachah, where the relatives are merely sharecroppers keeping the land as a trust for the owner, this halachah is talking about a situation where they asserted their ownership over it as if it were their property. For example, they built or destroyed structures.
The above explanation is offered by the Maggid Mishneh in resolution of the Ra’avad’s objections to the Rambam’s rulings. The Maggid Mishneh does, however, question the source for the Rambam’s statements. He cites a baraita from Bava Metzia 38b, which could possibly have led to such a conclusion.

In both these instances, there is a likelihood that the person died. Hence, we do not expropriate the property from the heirs.

Although the Rambam states in Halachah 10 that if we hear that a person who left his city died - even if he left voluntarily - we entrust his property to a relative, but in that instance, he is given the property to use as a sharecropper. Here, as explained above, we are talking about a situation where a person asserts ownership over the property as if it were his own.
If we do not hear a report that the person died, we do not entrust the property to a relative. The rationale is that since the person left voluntarily without entrusting his property to anyone, we assume that this was his desire. When, by contrast, he fled or was taken captive, we assume that had he had the time to organize his affairs, he would have entrusted his property to someone [Rashi (Bava Metzia, loc. cit.)]. See Halachah 10 and notes.

For the mitzvah of returning a lost object also involves taking preparatory steps to make sure a person’s property is not destroyed. (See Hilchot Gezelah Va’Avedah 11:20.) The court, as agents of the community at large, is therefore responsible for protecting the property of any fellow-Jew.

In this situation, unlike the situation mentioned in the previous halachah, we have not heard a rumor that the person who fled or who was taken captive died. Since the person was taken away by force or fled hurriedly, we assume that he did not have the time to organize his affairs. Had he had the time, he most surely would have entrusted his property to someone for safekeeping. Hence, to protect his interests, the court acts on his behalf.

The Maggid Mishneh notes that the Rambam does not say that the movable property is entrusted to a relative.

The Tur and the Ramah (Choshen Mishpat 285:2) state that if some of the relatives are trained farmers and others are not, the land should be entrusted to those with agricultural experience.

We give the land to relatives rather than sharecroppers, because we fear that sharecroppers will take advantage of the fact that the owner is not present and will plant crops that will sap the power of the land and damage its long-term value. An heir will be less likely to do that, for the possibility exists that the owner will not return and the property will become his (Sefer Me’irat Einayim 285:4).

According to a simple reading of the Rambam’s words, the intent is that both the produce that the land yielded and the property’s increase in value are evaluated. The Tur and the Ramah (loc. cit.), however, maintain that all the produce is given to the person who cared for the land.

The Tur and the Ra’avad differ and maintain that the person who was entrusted with the property is never required to account for the benefit he derived from the property. He is given a share of the profits without any liabilities. The Shulchan Aruch (loc. cit.) quotes the Rambam’s view, while the Ramah quotes the other perspective.

A person who cares for the property without receiving a wage.

Rashi (Bava Metzia 39a) explains that people will be willing to accept a position as a guardian for the estate of a minor because of the great mitzvah involved. They would not be willing to undertake such a responsibility, with all the effort it entails, to care for the landed property of adults. They will, however, accept responsibility for guarding movable property, because there is little effort involved, and being chosen by the court for such responsibility is an honor.
The Ramah (loc. cit.) discusses the possibility of a person’s volunteering to serve as a guardian for property. He maintains that it is the most desirable course of action. Nevertheless, he cites a difference of opinion among the Rabbis whether or not the relatives have the right to protest this step.

The Rambam uses different Hebrew terms to refer to the harvesting of these different species of fruit.

Since we are speaking of a very short-term arrangement, it is probable that the court will be able to find a person who will volunteer to carry out this task.

Thus, if the owner returns, he will not receive this sum.

In these instances, there is little chance of substantial capital depreciation, and the profits are easily attainable through renting the property. Hence, this is the course of action that is taken.

The Rambam appears to be saying that the relative always receives the portion given a sharecropper. Even if he maintains possession of the property for a number of years, when his relative ultimately returns, he must make a reckoning for all of the years he held the property as if he was a sharecropper.
The Ra’avad differs and maintains that although the relative is given the portion allocated to a sharecropper with regard to the produce growing in the field at the time his relative returns. He is, however, allowed to keep all the produce which he harvested in previous years. The Shulchan Aruch (Choshen Mishpat 285:3) quotes the Rambam’s wording verbatim. See also Halachah 5 and notes.

In his Beit Yosef, Rav Yosef Karo maintains that a printing error crept into the text, and the word “not” should be eliminated. Since it appears that the owner desired that his field should not be tended to, we do his will and remove his relative from it. This interpretation is borne out by the Rambam’s source, Bava Metzia 38b, and is substantiated by authoritative manuscripts and early printings of the Mishneh Torah. Rav Yosef Karo quotes this corrected version in his Shulchan Aruch (Choshen Mishpat 285:4).

Had he desired that someone tend to it, he would have made such arrangements before he left. Since he was not pressured by danger or taken away against his will, we assume that he took all the measures that he desired to care for his property.

Even if this will cause the land to deteriorate.

Hilchot Gezelah Va’Avedah 11:11.

In which instance, he is no longer capable of caring for his property and the responsibility to do so then becomes the court. Hence, the same principles stated in Halachah 5 apply.

But not to a relative. Note, however, the Ramah (Choshen Mishpat 285:5), who states that if a relative is trustworthy, the movable property can be entrusted to him, just as it could be entrusted to anyone else.

The Maggid Mishneh states that there is no clear Talmudic source for the Rambam’s opinion. Moreover, he cites the views of the Ramban and the Rashba, who differ and maintain that the fact that it is rumored that a person has died does not change the halachic status of his property. Until it is known that he certainly died, the property is not given to the heirs - even as sharecroppers. If the heirs consent, however, the property may be given to a third party to care for as a sharecropper. The Shulchan Aruch (Choshen Mishpat 285:5) quotes the Rambam’s view.