Nachalot - Chapter 10

1When two brothers divided an estate and then a third brother1 came from overseas, or when three brothers divided an estate and then a creditor came and expropriated the portion of one of them,2 the division is nullified. They should return and divide the remainder equally. This applies even if originally one brother took land and the other cash.3אשְׁנֵי אַחִים שֶׁחָלְקוּ, וּבָא לָהֶן אָח מִמְּדִינַת הַיָּם, וְכֵן שְׁלֹשָׁה אַחִין שֶׁחָלְקוּ, וּבָא בַּעַל חוֹב וְנָטַל חֶלְקוֹ שֶׁל אֶחָד מֵהֶן, אַפִלּוּ נָטַל זֶה קַרְקַע וְזֶה כְּסָפִים - בָּטְלָה מַחְלֹקֶת, וְחוֹזְרִין וְחוֹלְקִין הַשְּׁאָר בְּשָׁוֶה.

2When, before his death, a person commanded that so-and-so be given a palm tree or a field from his property, but the brothers divided the estate without giving that person anything, their division is negated. What should they do? The entity concerning which the deceased commanded should be given to that person, and then they should divide the estate anew.4במִי שֶׁצִּוָּה בִּשְׁעַת מִיתָתוֹ שֶׁיִּתְּנוּ לִפְלוֹנִי דֶּקֶל אוֹ שָׂדֶה מִנְּכָסָיו, וְחָלְקוּ הָאַחִין וְלֹא נָתְנוּ לוֹ כְּלוּם - הֲרֵי הַמַּחֲלֹקֶת בְּטֵלָה. וְכֵיצַד עוֹשִׂין? נוֹתְנִין מַה שֶׁצִּוָּה מוֹרִישָׁן, וְאַחַר כָּךְ חוֹזְרִין וְחוֹלְקִין כַּתְּחִלָּה.

3When brothers divide an estate, we evaluate the clothes they are wearing.5 We do not evaluate the clothes that their sons and daughters are wearing that they purchased with the funds of the estate. Similarly, the clothes that their wives are wearing are considered as if they have already been acquired by them.6 When does the above apply? With regard to weekday garments. With regard to Sabbath and festival garments, we evaluate what the women and children are wearing.7גהָאַחִין שֶׁחָלְקוּ, שָׁמִין מַה שֶׁעֲלֵיהֶן. אֲבָל מַה שֶׁעַל בְּנֵיהֶן וּבְנוֹתֵיהֶן, שֶׁקָּנוּ לָהֶן מִתְּפוּסַת הַבַּיִת - אֵין שָׁמִין. וְכֵן מַה שֶׁעַל נְשׁוֹתֵיהֶן, שֶׁכְּבָר זָכוּ בָּהֶן לְעַצְמָן. בַּמֶּה דְּבָרִים אֲמוּרִים? בְּבִגְדֵי חֹל. אֲבָל בְּבִגְדֵי שַׁבָּת וּמוֹעֵד, שָׁמִין מַה שֶׁעֲלֵיהֶן.

4The following law applies when a person died leaving some orphans who are past majority, and others who are below majority.8 If they desired to divide their father’s estate so that the older brothers could receive their portion, the court appoints a guardian for the minors and chooses a good portion for them.9דמִי שֶׁהִנִּיחַ יְתוֹמִים, מִקְצָתָן גְּדוֹלִים וּמִקְצָתָן קְטַנִּים, וְרָצוּ לַחֲלֹק בְּנִכְסֵי אֲבִיהֶן, כְּדֵי שֶׁיִּטְּלוּ הַגְּדוֹלִים חֶלְקָן - מַעֲמִידִין בֵּית דִּין אַפוֹטְרוֹפוֹס לַקְּטַנִּים, וּבוֹרֵר לָהֶן הַחֵלֶק הַיָּפֶה.

Once they come of age, they may not protest the division, because it was made by the court. If, however, the court erred in its evaluation of the estate’s worth and reduced their portion by a sixth,10 they may issue a protest. In that instance, a new division is made after they come of age.וְאִם הִגְדִּילוּ - אֵינָן יְכוֹלִין לְמַחוֹת, שֶׁהֲרֵי עַל פִּי בֵּית דִּין חָלְקוּ לָהֶם. וְאִם טָעוּ בֵּית דִּין בַּשּׁוּמָא, וּפָחֲתוּ שְׁתוּת - יְכוֹלִין לְמַחוֹת, וְחוֹזְרִין וְחוֹלְקִין חֲלֻקָּה אַחֶרֶת אַחַר שֶׁהִגְדִּילוּ.

5When a person dies, leaving some orphans who are past majority and others who are below majority, he must appoint a guardian before his death, who will care for the portion of the minors until they come of age.11 If the father does not appoint such a guardian, the court is obligated to appoint a guardian for them until they come of age. For the court12 acts as the parents of the orphans.המִי שֶׁמֵּת וְהִנִּיחַ יוֹרְשִׁין גְּדוֹלִים וּקְטַנִּים - צָרִיךְ לְמַנּוֹת אַפוֹטְרוֹפוֹס שֶׁיִּהְיֶה מִתְעַסֵּק בְּחֵלֶק הַקָּטָן, עַד שֶׁיַּגְדִּיל. וְאִם לֹא מִנָּה - חַיָּבִין בֵּית דִּין לְהַעֲמִיד לָהֶן אַפוֹטְרוֹפוֹס, עַד שֶׁיַּגְדִּילוּ; שֶׁבֵּית דִּין הוּא אֲבִיהֶן שֶׁל יְּתוֹמִים.

6If the dying person ordered: “Give the minor’s portion of my estate to him. Let him do whatever he wants with it,” he has the license to deal with his own estate in this manner.13 Similarly, if the dying person appointed a minor, a woman or a servant as the guardian for the minors, he has the license to deal with his own estate in this manner.14וצִוָּה הַמּוֹרִישׁ וְאָמַר 'יִנָּתֵן חֵלֶק הַקָּטָן לַקָּטָן, וּמַה שֶׁיִּרְצֶה יַעֲשֶׂה בּוֹ' - הָרְשׁוּת בְּיָדוֹ. וְכֵן אִם מִנָּה הַמּוֹרִישׁ אַפוֹטְרוֹפוֹס עַל הַקְּטַנִּים, קָטָן אוֹ אִשָּׁה אוֹ עֶבֶד - הָרְשׁוּת בְּיָדוֹ.

A court, by contrast, should not appoint a woman,15 a servant,16 a minor or an unlearned person who is suspect to violate the Torah’s prohibitions as a guardian.17 Instead, they should seek out a faithful and courageous18 person who knows how to advance the claims of the orphans and bring arguments on their behalf, one who is capable with regard to worldly matters to protect their property and secure a profit for them. Such a person is appointed a guardian over the minors whether or not he is related to them.19 If he is a relative, however, he should not take control of the landed property.20אֲבָל אֵין בֵּית דִּין מְמַנִּין אַפוֹטְרוֹפוֹס לֹא אִשָּׁה, וְלֹא עֶבֶד, וְלֹא קָטָן, וְלֹא עַם הָאָרֶץ, שֶׁהוּא בְּחֶזְקַת חָשׁוּד עַל עֲבֵרוֹת. אֶלָא בּוֹדְקִין עַל אָדָם נֶאֱמָן, וְאִישׁ חַיִל, וְיוֹדֵעַ לְהַפֵּךְ בִּזְכוּת הַיְּתוֹמִים וְטוֹעֵן טְעָנוֹתָם, וְיֵשׁ לוֹ כּוֹחַ בְּעִסְקֵי הָעוֹלָם כְּדֵי לִשְׁמֹר נִכְסֵיהֶן וּלְהַרְוִיחַ בָּהֶן, וּמַעֲמִידִין אוֹתוֹ עַל הַקְּטַנִּים, בֵּין שֶׁהָיָה רָחוֹק בֵּין שֶׁהָיָה קָרוֹב לַקָּטָן, אֶלָא שֶׁאִם הָיָה קָרוֹב - לֹא יֵרֵד לַקַּרְקָעוֹת.

7When the court appointed a guardian and afterwards heard that he was eating, drinking and making other expenses beyond what he could be expected to, they should suspect that he is using the resources of the orphans. They should remove him from his position and appoint someone else.21 If, however, the guardian was appointed by the orphan’s father, he should not be removed in such a situation; it is possible that he found an ownerless article.22 If, however, witnesses come and testify that he is ruining the orphans’ estate,23 he is removed from his position. The Geonim agreed that he should be required to take an oath24 in such a situation, for he is causing the orphans a loss.זבֵּית דִּין שֶׁהֶעֱמִידוּ אַפוֹטְרוֹפוֹס, וְשָׁמְעוּ עָלָיו שֶׁהוּא אוֹכֵל וְשׁוֹתֶה וּמוֹצִיא הוֹצָאוֹת יָתֵר מִדָּבָר שֶׁהוּא אָמוּד בּוֹ - יֵשׁ לָהֶן לָחוּשׁ לוֹ, שֶׁמָּא מִנִּכְסֵי יְתוֹמִים הוּא אוֹכֵל; וּמְסַלְּקִין אוֹתוֹ וּמַעֲמִידִין אַחֵר. אֲבָל אִם מִנָּהוּ אֲבִי יְתוֹמִים - אֵין מְסַלְּקִין אוֹתוֹ, שֶׁמָּא מְצִיאָה מָצָא; אֶלָא אִם בָּאוּ עֵדִים שֶׁהוּא מַפְסִיד נִכְסֵי יְתוֹמִים, מְסַלְּקִין אוֹתוֹ. וּכְבָר הִסְכִּימוּ הַגְּאוֹנִים שֶׁמַּשְׁבִּיעִין אוֹתוֹ, הוֹאִיל וּמַפְסִיד.

Similarly, when a guardian was appointed by the orphans’ father who had a praiseworthy reputation, was known to be upright and to pursue the mitzvot, and he became a glutton and a drunkard and began following paths that arouse suspicion, or became reckless with regard to vows and the shade of theft, the court is required to remove him from his position25 and require him to take an oath. Afterwards, they appoint an appropriate guardian. These matters are dependent on the perception of the local judge. For each and every court must act as the parents of the orphans.וְהוּא הַדִּין לְאַפוֹטְרוֹפוֹס שֶׁמִּנָּהוּ אֲבִי יְתוֹמִים, וְהָיְתָה שְׁמוּעָתוֹ טוֹבָה, וְהָיָה יָשָׁר וְרוֹדֵף מִצְווֹת, וְחָזַר לִהְיוֹת זוֹלֵל וְסוֹבֵא וְהוֹלֵךְ בְּדַרְכֵּי הַחֲשָׁד, אוֹ שֶׁפָּרַץ בַּנְּדָרִים וּבַאֲבַק גָּזֵל - בֵּית דִּין חַיָּבִים לְסַלֵּק אוֹתוֹ וּלְהַשְׁבִּיעוֹ, וּלְמַנּוֹת לָהֶן אַפוֹטְרוֹפוֹס כָּשֵׁר. וְכָל הַדְּבָרִים הָאֵלּוּ, כְּפִי מַה שֶׁיֵּרָאֶה לַדַּיָּן, שֶׁכָּל בֵּית דִּין וּבֵית דִּין הוּא אֲבִיהֶן שֶׁל יְּתוֹמִים.

8When a minor attains majority, even if he eats and drinks excessively, ruins his estate and follows an undesirable path, the court does not withhold his property from him,26 nor does it appoint a guardian, unless his father or the person whose property he inherited ordered that the property not be given to him unless he conducts himself uprightly and successfully, or that it not be given to him until later.27 A person who is mentally or emotionally unstable or a deaf-mute are considered as minors,28 and a guardian should be appointed for them.חקָטָן שֶׁהִגְדִּיל, אַפִלּוּ הָיָה אוֹכֵל וְשׁוֹתֶה יוֹתֵר מִדַּי וּמַפְסִיד וְהוֹלֵךְ בְּדֶרֶךְ רָעָה - אֵין בֵּית דִּין מוֹנְעִין מִמֶּנּוּ מְמוֹנוֹ, וְאֵין מַעֲמִידִין לוֹ אַפוֹטְרוֹפוֹס, אֶלָא אִם כֵּן צִוָּה אָבִיו אוֹ מוֹרִישׁוֹ שֶׁלֹּא יִתְּנוּ לוֹ אֶלָא אִם כֵּן הָיָה כָּשֵׁר וּמַצְלִיחַ, אוֹ שֶׁלֹּא יִתְּנוּ לוֹ עַד זְמַן פְּלוֹנִי. וְהַשּׁוֹטֶה וְהַחֵרֵשׁ - הֲרֵי הֵן כִּקְטַנִּים, וּמַעֲמִידִין לָהֶן אַפוֹטְרוֹפוֹס.

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Nachalot - Chapter 9

Nachalot - Chapter 11

Footnotes

Of whose existence they did not know.

The Maggid Mishneh quotes the Ramban and the Rashba as explaining that when both brothers receive landed property from the inheritance, the creditor may expropriate the entire debt from either one. He does not have to expropriate half of the debt from one and the other half from the other.
The Shulchan Aruch (Choshen Mishpat 107:7) does not accept that approach. According to that source, this can be interpreted as referring to a situation where there were only two fields in the estate. We do not require the creditor to take half a field from one and half from the other. Instead, he can take an entire field from one, and that brother then must renegotiate the inheritance with his other brother.
The Tur (Choshen Mishpat 175) explains that this refers to a situation where the father designated a particular field as payment for the debt, making it an ipotiki. Otherwise, the creditor would not be able to collect the sum from only one of the brothers. Sefer Me’irat Einayim 175:5 also mentions another possibility for such a scenario.

Bava Kama 9a mentions an opinion that states that the brother who took the money could say: “I took the money and accepted the risk that it be stolen. You took the land and accepted the risk that it be expropriated by a creditor.” The Rambam does not accept this view and maintains that both brothers must share in the responsibility for the debt.

The Tur and the Ramah (Choshen Mishpat 288:2) write that if the brother from whom the property was not taken desires to preserve the initial division, he can offer to give the other brother land equivalent to the value of the land expropriated from him. The two must then negotiate a financial compromise. The other brother is obligated to accept this offer.

This is speaking about garments that were purchased with the funds of the estate. The Ramah (Choshen Mishpat 288:1) states that we do not evaluate the clothes of the eldest brother. This refers to the concept stated at the conclusion of the previous chapter, that the eldest brother may buy fine clothes from the money of the estate so that he will make a prestigious impression.

And they need not be evaluated by the court. The Maggid Mishneh explains that as long as the brothers are sharing the money of the estate, they are willing to forgo the slight differences that exist between the values of the clothes purchased by the families. And once they have waived the right to protest, the clothes are considered to be presents given to the wives and children, and cannot be reclaimed by the estate.

Since the Sabbath and festival clothes are more valuable, the brothers never forgo their value to each other. Instead, they are considered to be loans from the estate and when the estate is divided, their value must be calculated.

This law would not apply if they were all below majority. Since a guardian is being appointed, it would be preferable for one person to be appointed to care for the entire estate. And if they are all past majority, there is no need for a guardian at all (Maggid Mishneh).

From the Rambam’s wording, the Maggid Mishneh concludes that although a guardian for the orphans has been appointed, he cannot negotiate the division of the estate himself, but must act with the guidance of the court. See also the contrast between Hilchot Mechirah 13:9 and 13:10.
The Tur and the Ramah (Choshen Mishpat 289:1) state that the estate should be divided into equal portions, and then a lottery should be made between the brothers.

10.

See Hilchot Mechirah 13:10, which mentions this figure, explaining that just as with regard to ordinary business dealings, a person is willing to forgo a loss of up to a sixth; so, too, in this instance, that figure is chosen.

11.

The Ra’avad states that this applies to a situation where the father divided the estate among his children during his lifetime. Otherwise, the estate is kept as an integral entity managed by the older brothers, from which all the brothers derive their living expenses until the minors come of age.
The Maggid Mishneh states that the Rambam would accept this ruling as long as the older brothers are managing the estate at a profit. If, however, they bring about a loss, it is preferable for the minors to have the estate divided, so that their share will not be diminished.

12.

The Ramah (Choshen Mishpat 290:1) emphasizes that the term “court” refers to the presiding Jewish court in the region or a court composed of the leading Rabbinic figures of the generation. No three people can take it upon themselves to serve as the court to administer the affairs of minors.

13.

I.e., his request should be heeded, even though the minor may squander the estate, for it is a mitzvah to see to it that the desires of the deceased are brought to fruition (Maggid Mishneh).

14.

Even though these people may not be effective guardians, since it is his own property, he can do as he desires. The court does not supersede his authority and prevent them from being appointed.

15.

For women do not generally go out and involve themselves in business affairs (Sefer Me'irat Einayim 290:5).

16.

Who are generally not considered to be trustworthy (ibid.).

17.

There are times when the term am ha’aretz is used to connote an unlearned person, but one who is observant of the Torah’s laws. In other situations, the term is used to refer to someone who in addition to his lack of knowledge is also careless in his observance. The Rambam, following the approach of Rabbenu Yitzchak Alfasi, adopts the second interpretation. The Maggid Mishneh mentions that there are opinions (see Rashi, Pesachim 49b) that maintain that even if an unlearned person is observant, he should not be entrusted with the responsibility of serving as a guarantor. For “an unlearned person is not pious” (Avot 2:5), and it is likely that he will allow himself to benefit from the orphan’s estate, rationalizing that he is doing no more than taking compensation for his efforts. The wording of the Shulchan Aruch (Choshen Mishpat 290:2) quotes the Rambam’s wording. Nevertheless, this perspective does not necessarily contradict Rashi’s approach.

18.

Our translation is dependent on the Rambam’s wording in Hilchot Sanhedrin 2:7.

19.

The Ramah (Choshen Mishpat 290:2) adds that the person chosen may be related to one of the judges of the court; this does not present an impediment.

20.

See Chapter 8, Halachot 1-2. Although that halachah speaks of a situation when the owner of the property has been taken captive, the restriction applies in all instances.

21.

Since he was appointed by the court, they have the authority to remove him when they see fit. Indeed, they must do so. Otherwise, they will be responsible for causing the orphans a loss (Maggid Mishneh). Rabbenu Asher and the Ramah (Choshen Mishpat 290:5) differ and maintain that even when a guardian is appointed by the court, he may not be removed from his position unless witnesses testify concerning his improper conduct.

22.

And is using that to finance his extra spending.

23.

If, however, witnesses testify that the guardian is acting irresponsibly with his own property, that is not sufficient cause to have him removed from his position (Sefer Me’irat Einayim 290:12).

24.

That he did not misappropriate property belonging to the orphans. Although an oath is generally not required (see Chapter 11, Halachah 5) of a guardian appointed by the orphans' parents, an exception is made because of the testimony of the witnesses.

25.

We assume that if the father knew how this person would conduct himself at present, he would not desire to have him serve as a guardian. Hence, he is removed from that capacity. From this the Maggid Mishneh derives that if a person had an unsavory reputation at the outset, and the father, nevertheless appointed him as a guardian, he should not be removed from his position for continuing to conduct himself in this manner.

26.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 290:26) adds that the court should rebuke the youth and try to influence him to mend his conduct.

27.

Sefer Me’irat Einayim 290:58 states that if, during the time he was waiting for his estate, the heir designated it as security or the like, his actions are of no consequence.

28.

For they are incapable of dealing responsibly with their property.

Rabbi Eliyahu Touger is a noted author and translator, widely published for his works on Chassidut and Maimonides.

The text on this page contains sacred literature. Please do not deface or discard.

Vowelized Hebrew text courtesy Torat Emet under CC 2.5 license.

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