Siman 109

When they come to sell from the property of orphans, the beit din appraises the land and afterward they proclaim it in the synagogue for thirty consecutive days so that the matter becomes publicized and buyers will jump at it and raise its price. And if it is not the way to proclaim consecutively, such as in a place where many do not gather every day but only on Monday and Thursday [Levush], they proclaim for sixty days on every Monday and Thursday within them; and even though it is only eighteen days, nevertheless, since it extends for sixty days, it has a rumor like thirty daily proclamations [Arachin 22a]. And they proclaim in the morning and in the evening: in the morning at the time of the workers' entry to their labor, and in the evening at the time of their exit from their labor, so that anyone who wishes to buy it may take the workers to see it. And how do they proclaim? Such-and-such field, whose signs are such-and-such and whose boundaries are such-and-such, is standing to be sold, and anyone who wants to buy should come and buy. And they inform how much the beit din appraised it for, and how much produce it yields every year, and for what reason they want to sell it—whether to collect for a creditor or for a woman's ketubah. For there are those for whom a creditor is more of a priority than a woman, as he is not so exacting with the coins and takes broken or diminished ones, for it is not the way of merchants to be exacting in this, but a woman is very exacting. And there are those for whom a woman's ketubah is a priority, as she takes the money little by little since she is not a person of commerce, which is not the case with a creditor. And proclamations such as these must also be made when they collect houses and sell them; and even though regarding houses the reason of workers does not apply as it does with fields, nevertheless, the rabbis did not differentiate, and so they practiced [Urim VeTummim].

If the creditor says, "I will accept the field without an assessment in payment of my debt," even though it is known and publicized that the debt is much greater than the value of the field, and it is his desire to take it for his entire debt, and the heir says, "Not so, but rather the beit din shall assess it," we listen to the heir. For perhaps it is the desire of the heir to pay now with his money so that the land remains with him, or even if he does not have money now, nevertheless it is his desire to know its assessment, for perhaps he will have money and redeem it according to its assessment. For it is within his power to say so, since nothing remained from his father except this land, he can withhold it for himself and pay its value. The creditor cannot say, "To me it is worth my entire debt, and if you desire the land, pay me my entire debt." This is not similar to a purchaser, which will be explained in siman 114, where he can say so, for there it is for the benefit of the debtor since he is alive; see there. And there are those who disagree on this and hold that the creditor can say so, and therefore an assessment is not necessary, for in any case: if it is his desire to pay him his entire debt, an assessment is not necessary, and if it is not his desire to do so, it is not within his power to remove it from his hand [Shach]. And it will be further explained in siman 115, and in siman 107 we explained this as well. And when it is collateralized in the hand of the creditor, even according to the first opinion, he can say, "Therefore I lent upon it because it was precious in my eyes" [Taz], as we wrote in siman 72 regarding a collateral.

The beit din must investigate thoroughly when they announce that this field belongs to the father of the heir and not to the heir himself, for we fear perhaps the heir will substitute his own field so that the creditor will collect it and improve it, and he will choose and lose his inherited field, and afterwards over time he will substitute it for his field because he will clarify that he gave his field then by mistake, and they will bring a complaint against the beit din that they did not look well into the enactment of the creditor. Therefore, when they write the adrakhta on the property of orphans, whether adults or minors, they must write in it: "And we recognized that these properties belong to so-and-so, the deceased." And if it was not written so, the adrakhta is invalid and they do not consume produce from it even after the days of the announcement are completed, for the sages were concerned for the disparagement of the beit din and were stringent in this.

There are things that do not require a public announcement, and one does not announce regarding them when they are sold, and these are: slaves, documents, and movable objects. Rather, they appraise how much they are worth and sell them. The reason regarding slaves is that we fear perhaps the slaves will hear that they wish to sell them and they will flee; and regarding documents and movable objects, perhaps when many people gather based on the announcements, they will steal them. Even regarding lands, there are times when one does not announce, such as an apotropos or a beit din who borrowed for the purpose of the orphans' sustenance, or for the sustenance of the wife and daughters, or who borrowed for the purpose of burial or to pay the king's tax—when they sell land to repay the lenders, they sell without an announcement. Since they borrowed for the purpose of these necessary things, and certainly when the sale itself is for the purpose of these things, the reason is because it is not possible to wait for sustenance, burial, and taxes until the days of the announcement are completed. Therefore, even when they borrowed for the purpose of these things and sell to repay the lenders, they do not sell with an announcement so as not to lock the door before lenders for these matters, for if they would need to wait until the days of the announcement are completed, they would not easily lend to them. Similarly, there are places where they were accustomed never to announce because there are people who will not want to buy if they announce, so that they should not be called "eaters of announced properties," who buy properties sold due to pressure and distress; rather, they appraise them in beit din and sell them immediately according to the assessment of the beit din. Regarding slaves, documents, and movable objects, if the market is close to that place, they bring them to the market; and similarly, if the market day is near within a few days, they wait for the market day [it appears to me]. Similarly, a beit din that sold the land of orphans and the liability remained upon the orphans, as will be explained, if it was seized from the buyer, the buyer collects from the orphans' properties without an announcement. Similarly, if they borrowed for the purpose of the orphans what was a necessity to borrow, they sell without an announcement and repay so as not to lock the door before the lenders. And know that according to the law of the Gemara that the movable objects of orphans are not subordinated to a creditor, you do not find the sale of movable objects and documents except when the lender seized them during the lifetime [Tosafot Ketubot 100b].

A beit din that sold items requiring proclamation without a proclamation, and in a place where they proclaim, are treated like those who erred in a matter of Mishnah, and their sale is not a sale at all, even when they did not err in the price; and they return and sell with a proclamation. And if they proclaimed properly and investigated well and were precise in the appraisal, even though they erred and sold that which is worth a maneh for two hundred or two hundred for a maneh, their sale stands, for the power of a beit din is sufficient to uphold the transaction even when they erred, provided they acted according to the law; for if not so, people would never want to buy, lest the transaction be voided due to an error. However, some say that this is specifically up to half, but if the error was more than half, their sale is void, as with ona'ah of land which will be explained in siman 227, where some say so. And all this is specifically when they did everything according to the law, and also, besides the proclamation, they were precise in the appraisal and made an "igueret bikoret," which is a deed of proclamation as written in siman 98. But if they did not investigate well in the appraisal or did not write an igueret bikoret, and they erred and added a sixth or reduced a sixth, their sale is void; and less than a sixth, their sale stands, for it is a waiver according to the law of ona'ah in movable property which will be explained there. And regarding a sixth, even though it will be explained there that the transaction stands and he returns the ona'ah, nevertheless, regarding heirs they enacted that if voiding the transaction is for the benefit of the orphans, the sale shall be void. And if the beit din desired not to void the transaction and to return the ona'ah, they return it, so that the power of a commoner should not be more stringent than orphans. And so too, a beit din that sold items that do not require proclamation and erred by a sixth, their sale is void, and less than a sixth, their sale stands. And so too, if they sold lands in a place where they do not proclaim and at a time when they do not proclaim, and they erred and reduced a sixth or added a sixth, their sale is void even though they proclaimed; and less than a sixth, their sale always stands. And some say regarding land, since they proclaimed, even though a proclamation is not required, nevertheless their sale stands even if they sold that which is worth a maneh for two hundred, as in a place where they proclaim. But regarding movable property, a proclamation is of no use at all even according to this opinion, since they are not in the category of proclamation in any place or at any time [it appears to me]. And in all these cases, when the error is a sixth, if the beit din desired to uphold the transaction and return the ona'ah of a sixth, the authority is in their hands as I have written; and in Even HaEzer siman 104 it was explained that there are those who disagree on this. But in more than a sixth, certainly their sale is void like the ona'ah of a commoner. And there is no difference in all this whether the orphans were defrauded or the buyer was defrauded; and also there is no difference whether he delayed long enough to show it to a merchant or did not delay, as there is a difference in the ona'ah of a commoner as written in siman 227 [Netivot HaMishpat], for they did not equate it to all the laws of ona'ah.

Our teacher, the Rema, wrote that there are those who say that if they sold the lands at a time when people do not buy, such as during a plague or a war, what they have done is done, for a beit din should only sell at the time of collection; and there are those who disagree. Thus far his words. And there are those who say that during a plague they do not sell, for at that time there is no commerce at all, and they wait until the wrath passes; but during a war they do sell, for the end of a war is not known, and a person does not wait when he needs to sell until the war passes, and there is at any rate commerce during the war [Taz]. And the primary ruling is that this depends on the assessment of the beit din, for certainly when the plague is strong and the noise of war is great in the place of the sale, they do not sell then at all. For behold, the prophet wondered and said: "Behold the mounds, they have come to the city to capture it... and You said to me: Buy for yourself the field" [Jeremiah 32]. And so too, if the beit din sees that even if they wait until the wrath passes, the land or the movables will not be ruined, they certainly wait even if the noise is not so strong; and why should they cause a loss to the property of orphans [Urim VeTumim]? And if the beit din sees that the land or the movables will be ruined and the noise is not so strong, they should not wait and they sell immediately. And so too, if it seems to the beit din to reduce the proclamations in order to sell before the days of siege arrive, the authority is in their hands [ibid.].

A beit din that sold the land of orphans, the responsibility remains upon the orphans regarding the rest of the properties they inherited from their father. For example, if a challenge arose regarding the sold land and they seized it from the buyer by law, the buyer returns to the rest of the properties they inherited. We do not say that anyone who buys from a beit din buys without responsibility because he is confident that if there were challengers, they would have come during the days of the public announcement, and therefore he intended and accepted to buy without responsibility. Rather, it is like all purchases, and they buy with responsibility unless the beit din specified at the time of the sale that they are selling without responsibility. And this is why the Sages, of blessed memory, did not impose upon the beit din that they should only sell without responsibility, for if so, they would not find buyers and they would treat their sale cheaply [it appears to me]:

Some say that this which we said, that if the beit din erred and undervalued by a sixth or overvalued by a sixth their sale is void, this is specifically when they transferred it to the creditor himself according to the appraisal of the beit din; for then, even regarding lands or slaves or documents which are not subject to the law of ona'ah, as written in siman 227, and the creditor was defrauded, the transfer is void. However, a beit din that sold land or slaves or documents of orphans, even for the purpose of paying a creditor, and they sold that which is worth a maneh for two hundred, the buyer cannot retract, for the power of an ordinary person should not be more stringent than the power of the orphans. For specifically regarding the creditor himself, when they transferred it to him according to the appraisal of the beit din, what could he have done? But the one who buys, who forced him to buy? And it is equal to all buyers who do not buy from orphans; and granted that when the orphans are defrauded their power is strengthened, but when he is defrauded, why should we strengthen his power? And such is the law regarding an apotropos who sold land and slaves and documents, that the buyer cannot retract due to ona'ah, according to the law of an ordinary person. And some disagree and hold that whenever they undervalued by a sixth or overvalued by a sixth their sale is void, for since he bought according to the appraisal of the beit din, it did not enter the mind of the buyer that there would be ona'ah in this, and it is not similar to a purchase from an ordinary person. But regarding an apotropos, when it was not sold according to the appraisal of the beit din, even according to this opinion he is like an ordinary person regarding the fact that it is not in the power of the buyer to retract, for an apotropos is like a mere agent, as written in siman 227. And when the apotropos is defrauded, even by any amount, the transaction is void according to the law of an agent [Urim VeTummim].

If they sold via a messenger and the messenger was defrauded by any amount, the sale is void, for he can say to him: "I sent you to benefit me and not to cause me loss." And if the buyer was defrauded, his law is like any other person, for what difference is there to the buyer if he buys from the seller himself or from a beit din or from a messenger, for behold, he himself purchased? Therefore, his law regarding his fraud is as if he purchased from the seller himself. And in siman 227 it will be explained that there are those who disagree on this. And there is no difference between a messenger of a beit din and a messenger of the seller. An apotropos also has the law of a messenger, as I have written. And when the buyer was defrauded, the sender merits the surplus and not the messenger [Tur], as will be explained in siman 183. Our teacher, the Rema, wrote that specifically a messenger of a beit din is not like them, but a judge appointed by the decree of the king, his messenger is like him. Thus far his words. And see in siman 26 [see Netivot HaMishpat].