Rambam - 3 Chapters a Day

Although one person carries out the transaction, the profits are split evenly among all the heirs. That person does not even receive payment for his time and effort [Shulchan Aruch (Choshen Mishpat 287:1) according to the Rambam]. See Hilchot Sh’luchin V’Shutafim, the conclusion of Chapter 8, where this concept is also stated.

The Maggid Mishneh emphasizes that their statement need not be made in the presence of a court. It must, however, be made in the presence of witnesses. The Tur and the Ramah differ and maintain that if there are minors among the heirs, the statement must be made in the presence of a court.

Since they made a specific stipulation that the benefit would be theirs, it is granted to them. The rationale is that, by not objecting, the other heirs waive their right to make use of the property. Although a waiver made by minors is ordinarily not binding, an exception is made in this instance. The rationale is that, regardless, the minors would not have been able to make use of their share, since they would not know how to invest it. Hence, they are not losing anything by allowing their elder brothers the use of their share of the estate.
The above interpretation is advanced by the Maggid Mishneh. He also cites the interpretation of the Ramban, who maintains that, with regard to the younger brothers’ share, the elder brothers are considered sharecroppers. The profits they earn are divided among themselves and the younger brothers.

Alternatively, because of extensive exertion (Maggid Mishneh).

I.e., an increase that came about without effort - e.g., a river flooded and thus fertilized a property. The Maggid Mishneh states that even renting out the land to someone else is considered profit that comes on its own accord, and the rent should be divided among all the heirs.

As the Maggid Mishneh explains, the Rambam apparently had a different version of Bava Batra 143b from the standard printed text. For this reason, others - including the Ra’avad - protest and offer different rulings. The Shulchan Aruch (loc. cit.) states that the Rambam’s view is not shared by any other significant authorities. The other authorities rule that if the older brothers increase the value of the estate without effort or without using the capital of the estate, the increase is shared. If the increase in value resulted from their own investments or efforts, they receive that profit. If the minors could have performed the same activities, and the older brothers did not make a statement indicating that they are acting on their own initiative, the profits are shared. If they made such a statement, they are entitled to all the profits.

E. g., Reuven married Asenat, the daughter of Shimon, his only brother. Shimon had no other sons - only daughters. If both Reuven and Shimon die, Asenat, Reuven’s wife, and Shimon’s other daughters are Reuven’s heirs.

As mentioned, the other authorities differ with the Rambam on this issue; see the notes on the previous halachah.

Bava Metzia 39b gives an example of such a situation. A person’s father moved from one community to another without selling his holdings in the first community. In his second community, his wife bore him a son, who, when he came of age, moved back to his father’s first community and took control of his property. Several years later, he received word that his father died. Afterwards, a claimant appeared, asserting that he was that person’s brother.

I.e., the entire estate and the increase in value are divided equally. The brother who took care of the estate and increased its value does not receive anything, for improving his brother’s share. The rationale is that he is considered to be a person who took control of another person’s property unlawfully - in which instance, he is not given any portion of the property’s increase in value. For, as stated in Chapter 8, Halachah 1, a relative is not given control over a minor’s property. The fact that he did not know of the existence of the other brother is not significant.
Sefer Me’irat Einayim 287:14 explains that the brother who improved the property is not, however, held liable for any benefit he received from the property until his brother came. Instead, he is merely required to return the property as is. Sefer Me’irat Einayim 287:15 also explains that even the authorities who differ with the Rambam with regard to the previous halachot would agree with his decision in this instance.

The brother who improved the property is given a share in the increase in value of the other brother’s property. The rationale is that since the other brother is past majority, it would be appropriate for the court to give his property to his brother to care for, as can be inferred from Chapter 7, Halachah 4. Hence, retroactively, it is considered as if the court does so.
The above applies when the brother who improves the property does not know of the existence of his brother. If, however, he knows of his existence, he must explicitly state that he is working the property for his own benefit, as stated in Halachah 1 (Maggid Mishneh).
The Ra’avad differs with the latter statement. The Maggid Mishneh counters his objections, explaining that, as stated in Halachah 1, as long as an estate is not divided, the Rambam considers all the brothers as willing to work on their brother’s behalf.

This clause restates - and adds explanation for - the first clause of this halachah.

This halachah is based on a incident that occurred concerning Rav Safra, as related by Bava Batra 144a. Rav Safra took the money belonging to his father’s estate and invested it in a business endeavor. It would appear that according to the Rambam, he should be granted all the profits. The Ramban, as quoted by the Maggid Mishneh, differs and maintains that he was given all the profits from his own share and a portion of the profits from has brothers’ share, according to the local custom.

In his gloss on this passage, the Nimukei Yosef states that there are no Torah scholars of Rav Safra’s stature today, and even a Torah scholar is considered an ordinary person with regard to such matters. In his Beit Yosef, Rav Yosef Karo differs and maintains that the concept applies in the present age as well. For this reason, he quotes this law in his Shulchan Aruch (Choshen Mishpat 287:2). Significantly, in his Darchei Moshe, the Ramah differs and follows the Nimukei Yosef’s ruling. In his gloss on the Shulchan Aruch, however, he does not mention this matter.

I.e., it is as if he made a stipulation to the fact that he was acting for his benefit alone [Tur (Choshen Mishpat 287)].

For his own sake, however, it is permitted for a Torah scholar to take a temporary diversion from Torah study to earn his livelihood, as Avot 2:2 states: "It is desirable to combine Torah study with an occupation" (Sefer Me'irat Einayim 287:13).

In his Bedek HaBayit (Choshen Mishpat 177), Rav Yosef Karo states that this applies when the brothers have not yet divided their father’s estate. This is also alluded to in the wording of the source of the halachah, Bava Batra 144b, which speaks of “brothers who are partners.” The Ramah (Choshen Mishpat 177:1) cites this interpretation.

The Ramah (loc. cit.) cites the view of Rabbenu Yonah, who states that first the brother who performs the task is allowed to receive the wage that he would have earned for performing this task as an ordinary worker. Afterwards, the remainder - i.e., the extra amount he receives because he is working for the king - is shared.

Even if his father also served in this position.

The Ramah (Choshen Mishpat 62:1) states that this law applies even if the promissory note is in the possession of the defendant. Although the defendant could use the principle of miggo in his defense, his word is not accepted Siftei Cohen 62:1).

Thus, the suspicion arises that he used money belonging to the estate and not his own personal funds.

Whom he did not share with his other brothers, and thus they did not receive a share in that estate.

I.e., witnesses must testify to the truth of his statements.
This concept is the subject of a difference of opinion between Rav and Shmuel (Bava Batra 52a, b). Although in matters of financial law, the halachah generally follows Shmuel’s opinion, in this instance the Rambam follows Rav’s perspective, because it appears that there is a baraita that supports his view.

This law does not concern the laws of inheritance. Nevertheless, since it is derived from the same source (Bava Batra, loc. cit.) as the previous and subsequent laws, and operates on the same principles, it is cited here by the Rambam. Although the Rambam uses wording similar to the passage from Bava Batra, that passage refers to a widow who is found in the situation described in the following clause of this halachah.

The Tur and the Ramah (Choshen Mishpat 62:1) explain that an ordinary housekeeper is placed in this category. The intent is not necessarily that she is appointed as the manager of the entire estate, but that she manages the household expenses.

In Hilchot Ishut 22:30, the Rambam writes that when a married woman claims that she received money as a gift from others, her word is accepted; she is not obligated to verify her statements. Nevertheless, that ruling does not necessarily represent a contradiction to this halachah. In the instance described here, since the woman is carrying out transactions with household funds, there is reason to think that she used money belonging the household rather than her own personal resources.

She is not required to show that the money from her inheritance was used for this purpose. It is sufficient for her to prove that she inherited enough money to make a loan of this size [Shulchan Aruch (Choshen Mishpat 62:1)].

Bava Batra, loc. cit., explains that one might think that a woman would be so happy that the court has appointed her to have jurisdiction over at least a portion of the estate, that she would not think of doing anything to jeopardize her position. Hence, we might think that she would not even be required to take an oath. To this, our Sages reply that nevertheless there is reason for suspicion.

I.e., the property and utensils she brought to the household. After her husband's death, this property is returned to her.

But instead the widow and all the heirs share all their expenses together, eating from one kitchen.

The commentaries have questioned the Rambam’s statement, for it implies that if a widow saves money from her food allotment, she is entitled to keep it for herself. In Hilchotlshut 18:4, however, he rules that if she saves money, the heirs are entitled to it.

It must be plausible that the brother was able to save the amount mentioned in the promissory note from his food allowance (Rabbenu Chanan’el). The Maggid Mishneh and the Tur differ and maintain that it is possible to say that the brother saved a small amount from his food allowance, invested it at a profit, and used the profit to make the loan or buy the servants mentioned.
The Shulchan Aruch (Choshen Mishpat 62:1) states that even if the brother or the woman claims to have received the money from an inheritance, since they could have claimed that they saved the money from their food allotment, their word is accepted, based on the principle of miggo. Had they desired to lie, they could have claimed that the money came from their allotment.

The burden of proof cannot be placed on the orphans, because it is likely that they will not understand their father’s business matters and will not be able to find proof of ownership. Since we have only suppositions that the brother took money from the estate, we require the other brothers to support their claim. For suppositions are not a strong enough basis to expropriate money from orphans.
The Ramah (loc. cit.) emphasizes that if the question revolves around a specific article that was known to belong to the estate, the burden of proof falls on the orphans, for in this instance there is more than a supposition involved.

He claims that his father gave him the note (and the debt associated with it) as a present. He - and not the estate as a whole - is entitled to collect it.

This is one of the effective means of transferring ownership of a promissory note (Hilchot Kinyan 6:11).

In which instance, ownership of the promissory note is transferred as a result of this oral will.

The fact that one brother has physical possession is not at all significant.

Such a person must also have acquired the promissory note through an effective kinyan. Nevertheless, we assume that he did so. With regard to brothers, we do not make such an assumption, because there is a greater likelihood that they seized possession of the promissory note without just reason.

The Rambam’s words have attracted the attention of the commentaries, for they must be considered in light of previous rulings. In Hilchot Kinyan, loc. cit., the Rambam writes:
There is no need for witnesses with regard to the actual transfer. Witnesses are necessary, however, for [the debt] to be collected. The debtor can tell [the purchaser]: “Who is to say that my creditor did in fact write to you [that the debt is transferred] and give you [the promissory note]?”
Thus, based on the Rambam’s statements in Hilchot Kinyan, it appears that the purchaser’s license to collect the debt depends on the willingness of the debtor to pay. If the debtor consents, possession of the promissory note is sufficient. If the debtor objects, however, the purchaser must bring proof that he is entitled to collect the debt. This is in fact the explanation offered by Rav Yosef MiGash, the Rambam’s teacher.
The Maggid Mishneh and the Tur cite the views of many other Rishonim who differ with Rav Yosef MiGash and maintain that in all situations, the purchaser must bring proof that he purchased the promissory note. See also Hilchot Malveh V’Loveh 16:7, where these issues are discussed.
The Shulchan Aruch (Choshen Mishpat 66:11) quotes the Rambam’s approach as well as that of the other authorities, without stating which should be followed. The Ramah, however, favors the approach of the other authorities.

According to the understanding that the debtor may protest, the intent is that the creditor - the original owner of the promissory note - may not protest.

I.e., although a formal division of the estate was not made, the brothers consented to give him this money from his share. Their consent to that allocation did not, however, also carry with it consent to receive a full measure of his food expenses.

This is speaking about a situation in which the brothers have not divided the estate and are providing their living expenses from shared funds. Although the one brother moves away, they cannot withhold his living expenses entirely. They may, however, reduce them, so that he does not receive a greater share than the others.

In his commentary to Bava Batra 144b, the source for this halachah, the Rashba emphasizes that this law applies only when the brother goes to study for his own sake. If all the brothers will derive benefit from his study, the estate must bear all of his expenses.

Generally, older sons will require more expenses for clothes and the like.

Generally, younger children will eat more than older ones.

Once the estate is divided, each one will use his share as he sees fit.
The Maggid Mishneh quotes the Rashba as stating that the Rambam’s ruling applies when the brothers protest against each other’s use of the estate. If that is not the case, the fact that one’s clothes cost more and the other’s meals cost more is not significant, for brothers are willing to waive such minor differences in cost. The Shulchan Aruch (Choshen Mishpat 286:1) quotes this interpretation, but also mentions another Rabbinic view that dissents.

The bracketed addition is made based on the Tur (Choshen Mishpat 286).

Since the older brothers married using the funds of the estate, the younger brothers are given the same privilege.

Each of the brothers is given an equal share of the estate, and the younger brothers must pay for their weddings from their own resources.

See Hilchot Zechiyah UMatanah 7:1-2, where the Rambam explains that wedding gifts are given by friends as loans. Their intent is to alleviate the financial burden of the person making the wedding with the understanding that when the friends marry off their own sons, the person to whom they gave the gift will repay them by giving them an equivalent wedding gift.

And not by that individual son. The gift is considered to have been made to the father and therefore should be repaid by his estate.

And used the wedding gift for that purpose.

Since he received it individually, it is as if it had been loaned to him.

It is as if, when designating the gift, the father specified that it was a present for the son he associated with it.

I.e., they must all marry and invite this person to join in their wedding celebrations.

As explained in Hilchot Zechiyah UMatanah, the friend is not required to return the wedding gift unless he is given the opportunity to rejoice at his friend's celebration in the same manner in which his friend rejoiced at his celebration. Thus, since the gift was given in the name of all the sons, the recipient must have the opportunity to celebrate at all of their weddings. Significantly, in his Commentary on the Mishnah (Bava Batra 9:4), the Rambam interprets this situation slightly differently.

The Tur (Choshen Mishpat 286) and the Ra’avad object to this ruling, asking why the repayment is shared. Since each share is associated with one of the son’s weddings, when that son marries, he should receive his share of the present. (Significantly, this perspective is also shared by the Rambam’s teacher, Rav Yosef MiGash.)
The Maggid Mishneh justifies the Rambam’s view, explaining that wedding gifts are not entirely like loans, and there are situations when they need not be returned. Hence, since the money was given by the father and therefore belongs to the estate as a whole, when even a portion of it is returned, it is shared, because it is possible that the remainder will not be repaid.
The Shulchan Aruch (Choshen Mishpat 286:5) quotes the Rambam’s view. The Ramah does not object. It can, however, be argued that he does not necessarily agree, but that since the customs of wedding gifts are not practiced at present in the same manner as in Talmudic times, he did not care to comment concerning the matter.

I.e., he has license to do so. It is not only that he is not required to repay his brothers if they object after the fact.

The Tur and the Shulchan Aruch (Choshen Mishpat 286:2) quote this law in connection with the law stated in Halachah 12, which speaks of older brothers wearing more expensive garments. The Maggid Mishneh and the Shulchan Aruch state that if the younger brothers object to the older brother’s purchase of such garments, he may not continue to do so.

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.

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.

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.

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.

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).

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.

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

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

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.

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

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.

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.

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.

And is using that to finance his extra spending.

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).

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.

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.

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.

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.

For they are incapable of dealing responsibly with their property.

The Tur and the Ramah (Choshen Mishpat 290:8) differ and maintain that a guardian should be appointed, because he will work harder than the court on behalf of the orphans.

I.e., landed property.

Generally, our Sages forbade making an investment of this nature, as a safeguard to the prohibition against taking interest. (See Hilchot Malveh V’Loveh 4:14.) Nevertheless, in an instance where orphans were involved, they did not impose such restrictions.
In that halachah, the Rambam states that we tell the investor: “Do business with their property. If there is a profit, give them a portion of the profit. If there is a loss, suffer the loss yourself.”

Or any other item with signs through which it can be identified.

See Hilchot She'ilah UFikadon 6:4, where these concepts are described. As the Rambam states in that source, we accept this claim even if there are no witnesses that the person who identified the article entrusted them to the investor. There are, however, other opinions, which require that the claimant produces witnesses that he entrusted the article to the investor (Maggid Mishneh, Hagahot Maimoniot).
When the person is using bars of gold, this entire question will not arise for there is no way that the bars can be identified.

The intent is that as little of the principal as possible should be spent, so that a significant amount will remain to be used for the purchase of land.

In this way, the estate will have income that can be used for the orphan’s ongoing support.

See Hilchot Malveh V’Loveh 12:11, which explains that we hurry to sell the movable property of an estate, lest it be stolen. In contrast to the articles mentioned in Halachah 6, the movable property mentioned in this halachah appears to be articles that do not have a functional purpose and will not bring income to the estate. The Tur and the Ramah (Choshen Mishpat 290:9) state that if a guardian was appointed for the orphans and it appears that it is to the orphans’ benefit for them to retain possession of these articles, they should not be sold.

And thus there is little risk of their being lost due to factors beyond control.

Where they will most likely command a better price.

And invested, as described in the previous halachah.

From this law, the Maggid Mishneh derives the concept that one cannot subject the property of orphans to risk in order to gain profit, unless there is an equal risk in keeping the property in its present place.

The Maggid Mishneh (in his gloss on Halachah 5) states that a person may refuse the court’s appointment. He does not have to serve as a guardian unless he desires. Once he accepts the appointment, however, he may not retract in the midst of his service, but must continue fulfilling his responsibilities until the orphans come of age.

Either because a buyer was not found, or because the property shared a sentimental attraction to the family (Sefer Me’irat Einayim 290:15).

Our translation is based on authoritative manuscripts of the Mishneh Torah. The standard printed texts state shobear, “break,” instead of sochear, “rent out.”

Clothes, lodging, and the like.

Reach the age of thirteen, for a male and twelve, for a female.
It is questionable whether these laws should still be followed today - when thirteen year-olds are not adequately prepared or able to function in the contemporary economic climate - or whether a guarantor’s period of stewardship should be lengthened.

At the beginning of his stewardship, however, a careful account of the estate’s assets should be made (Maggid Mishneh).

A Torah scroll or - in certain instances - tefillin.

This oath is a Rabbinic obligation, imposed because our Sages feared that it is possible that the guardian may take the license of taking property from the estate from time to time, rationalizing his conduct, because he feels that even more is due him because of the services he performs on behalf of the orphans (Hilchot Sh'luchin V'Shutafim 9:1).

Gittin 52b explains that if a guardian were required to take an oath, no one would accept the appointment; the fear of having to take an oath would deter them. On this same basis, the Ramban rules that a guardian appointed by the deceased is not liable, even if - by negligence - he caused the assets of the estate to be destroyed. For if he were held liable, no one would desire to accept such a responsibility.
This, however, does not apply with regard to a guardian appointed by the court. The honor of being chosen and trusted by the court will supersede the discomfort of having to take an oath. Extending this logic, the guardian is considered to be a paid watchman - i.e., the satisfaction is considered like a wage - and he is liable, not only when losses are suffered due to negligence, but also in instances of loss and theft (Maggid Mishneh).
The Ramah (Choshen Mishpat 290:16) states that since a guardian appointed by the deceased is not required to take an oath, he should be required to submit an account. The Shulchan Aruch (Choshen Mishpat 290:20) rules that any guardian - whether appointed by the deceased or the court - is considered to be an unpaid watchman. He is liable in the case of negligence and free in the instance of loss or theft.

Implied is that if the orphans have a definite claim - they assert that the guardian took a specific amount of money - he is required to take an oath. (See Rav Yitzchak Alfasi, as quoted by the Maggid Mishneh.)

Compare to Chapter 9, Halachah 15.

The Ramah (Choshen Mishpat 290:11) states that livestock should generally be sold before servants, and servants before landed property. He states, however, that the final decision depends on the appreciation of the guardian.

Rashi (Gittin 52a) explains that money is stolen more easily and does not bring as much prestige to a family as possessions. Hence, it is preferable not to exchange the possessions for money unless that is necessary for the sustenance of the orphans.

The Rambam’s intent is that the possibility exists that the income of the fields will not be as beneficial to the estate as the work of the servants, and conversely, the work of the servants may not be as beneficial as the income of the fields. Hence, it is preferable for the guardian to leave the situation without change. The Tur and the Ramah (loc. cit), however, differ and grant the guardian license to sell servants to purchase fields.

For without oxen to plow the field, the field will not have a successful crop.

The translation of the root ga’al as purchase is based on Leviticus 25:33.

Even though it is more comfortable to till a field that is closer to the city than one far away, and a high quality field is usually a better investment than a poor one, since there is a matter of risk involved in any purchase, Gittin, toe. cit., rules that the guardian should not change the existing situation.

The Maggid Mishneh explains that since the orphans will never be held liable, because of his arguments - for they may protest when they come of age - it is unfair for the guardians to be allowed to enter into litigation on the orphans’ behalf, for the plaintiff will be placed at a disadvantage. He may lose his claim, but can never have it vindicated entirely. Hence, the Maggid Mishneh continues, if they do argue a claim on behalf of the orphans and lose, the ruling is not binding.
The Ra’avad differs and maintains that he may enter litigation on the orphans’ behalf. If he is successful, the judgment is allowed to stand. If, however, he is not successful, the judgment may be protested. The Shulchan Aruch (Choshen Mishpat 290:12) follows the Maggid Mishneh’s perspective, but states that after the fact, if the guardian entered into a judgment and prevailed on behalf of the orphans, the judgment is allowed to stand.

Unlike the other laws mentioned above, this is not a safeguard for the orphans’ estate. Instead, the intent is that since the servants are not the guardian’s property, they have no authority over their physical persons (Sefer Me’irat Einayim 290:38). The court never granted the guardian this authority. Nevertheless, they did grant him the authority to sell the servant in certain circumstances. This is the rationale behind the Rambam’s ruling. The Ramah (Choshen Mishpat 290:13) states that if the court explicitly gives a guardian the authority to release servants, he may.

This refers to a situation where the servant was given money with the express intent that he use it to purchase his freedom. Otherwise, the money becomes the property of the servant’s owner (Sefer Me’irat Einayim 290:39).

Although it is a mitzvah to tithe crops and separate terumah, that mitzvah is not incumbent on the guardian, and he should not fulfill it, except in the instance mentioned by the Rambam.

Generally, we follow the principle that a chaver - a person who is reputed to observe the mitzvot faithfully - will not leave produce without separating terumah and tithes. Nevertheless, since this produce does not belong to the guardian, he should not correct the produce in this manner.
The Ra’avad protests the Rambam’s decision, maintaining that it is improper for the guardian not to make the produce ready for use before selling it. Note the Maggid Mishneh, who quotes Rashi’s Commentary on Gittin, loc. cit. - the source for this ruling - which offers a different interpretation than the Rambam. The Shulchan Aruch (Choshen Mishpat 290:14) follows the Rambam’s interpretation.

Produce from which tithes and terumah have not been separated. See Hilchot Ma’aser 6:6, which states that tevel may be sold only to a person who will separate terumah and tithes from it.

This refers both to guardians appointed by the court and guardians appointed by the deceased.

A defined limit in expense. It will be levied against the estate only once, and its cost can be approximated.

A father is obligated to train his children in the observance of the mitzvot. The guardians fulfill this responsibility on his behalf.

If, however, the orphans’ reputation will be enhanced by having charity given from their estate, the court may levy an assessment against their estate (Hilchot Matnot Ani’yim 7:12). Similarly, the Maggid Mishneh states that if the court authorizes the guardian to give charity on behalf of the orphans, he may.

See Hilchot Matnot Ani’yim 8:10, which states: “The redemption of captives takes precedence over providing for the livelihood of the poor.... There is no mitzvah as great as the redemption of captives.”

There will always be poor people who require support, and thus the orphan’s estate will be drained of its resources (Rashi, Gittin, loc. cit.).
In Yayin Malchut, the Lubavitcher Rebbe asks an obvious question: Why not allocate ten percent of the orphan’s estate to charity to train him to perform this mitzvah? In such a situation, the estate will not be drained of its resources, because a specific measure has been set aside.
The Rebbe replies that doing so would defeat the purpose of the charitable gift, because the children would not be trained in the performance of the mitzvah. To explain: When a child is being taught to give and he sees that another person possesses a crying need, he will not understand that he should not give more than a tenth (or a fifth) of his resources, for he will lack the maturity to moderate and control his generosity. Conversely, there are times when, as an expression of the attribute of piety, a person may give more than a fifth. (See the Rambam’s Commentary on the Mishnah, Pe’ah 1:1.) A child might not understand why suddenly he is being asked to make such a commitment. Because of the confusion that could arise, the guardians do not train the child in this mitzvah at all. Only when he becomes intellectually and emotionally mature is he instructed.

Who is considered unable to take responsibility for his financial holdings. In both these situations, the court departs from its general rule and appoints a guardian for an adult’s property (Chapter 10, Halachah 8).

We assume that if they had been in control of their faculties, they would have agreed to make such donations, for a person is usually willing to give to charity (Kessef Mishneh).

Halachah 5.

Sefer Me’irat Einayim 290:51 states that the Rambam describes God as “He who rides upon the Heavens” to instill fear into people’s hearts. For since God is continuously above them, observing their conduct and able to administer retribution, they should be careful to act justly.
More particularly, the term Aravot refers to the seventh heaven, which contains righteousness, judgment, and charity and is the source of positive influence for those who emulate those qualities (Aruch HaShulchan, based on Chaggigah 12b). The Lubavitcher Rebbe adds that the passage from Chaggigah also mentions that these heavens contain the dew with which the dead will be resurrected. This reminds the guardian that ultimately, in the era of the resurrection, he will encounter the father of these orphans and have to give an account to him.