Nachalot - Chapter 11

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.