Siman 110

It has already been explained in siman 108 that we do not collect any loan from minor heirs who have not reached thirteen years of age, even if there is a deed against them, unless it is one of the three ways explained there. Even if it contained a clause of trustworthiness, and even if it contained every condition in the world, we do not collect with it. However, if it is written in the deed that he shall collect even from minor orphans, his condition is valid and he collects from them, since he stipulated this explicitly [Urim VeTumim]. Similarly, if the beit din saw that there is other benefit for the orphans to collect from them while they are minors, such as if the creditor wants to waive a portion for them in order to collect now, the authority is in the hands of the beit din to allow him to collect. The beit din has the power to compromise in the business of orphans if it appears that it is good for them, as written in siman 12, section 4. Similarly, if there is a penalty for non-payment, and when they pay now they will be exempt from the penalty, they pay even in their minority [Shach]. Similarly, we collect from them a woman's ketubah, as written in Even HaEzer siman 104, because of the enactment for women. Similarly, we collect from them a debt upon which interest accrues, such as if their father borrowed from a gentile with interest; even if the gentile accepted upon himself to wait until they grow up according to the laws of Israel and not to sue them in their minority, but in a manner where they would pay interest until they grow up, we pay him immediately. We do not even wait for the days of public announcement, for the potential increase in the sale price is not worth against the interest that will accrue during these days [Urim VeTumim]. Similarly, if there is a debt deed against them from an Israelite who lent to their father by way of a heter iska, and the beit din sees that the profit the lender receives is not worth against the profit that will come from the business, they pay immediately, and they do not have the ability to force the lender to wait until they grow up without profit [it appears to me]. If the heir is a fetus, his law is like a minor. In a place where there are other heirs, some say we do not concern ourselves with the fetus, and if the heirs are adults, they pay the debt [Ketzot HaChoshen]. Even though the fetus certainly has a portion, and no one else can merit his portion, and when he is born the inheritance will fall before him, nevertheless, since he is not yet in the world, he does not have the power to delay the payment of the debt, since the fact that we do not collect from minors is only a mere concern, as will be explained.

If there are adult and minor heirs, and the adults must pay the debt while for the minors they must wait until they grow up according to the details explained in the previous simanim, the creditor is paid from the adults the portion reaching them, and for the portion of the minors he shall wait until they grow up. And in order that he may be paid from the adults, the beit din must appoint an apotropos for the minors and divide the inheritance with the adults, and the creditor shall collect from the adults their portion of what they are obligated to pay him.

This principle that we do not attend to the property of minors applies when it is certain that it belongs to the minors. However, if there is a doubt that perhaps their testator is still alive, and according to the law we collect in his absence as written in siman 106, we collect from the property even if they heard that he died, if the report is not clear. The reason is that since the fact that we do not collect from them is only due to the concern of tzerari, as will be explained, as long as it is not clarified with certainty that the property is theirs, we collect from the property; for this doubt does not override a certain obligation when there is a further doubt regarding the essence of the property, as to whom it belongs [it appears to me].

The reason that we do not collect from minors is because we fear that perhaps their father entrusted the creditor with bundles for the debt—that he bundled for him coins or silver and gold as a pledge at the time of death and did not manage to take the document from his hand [Rashi, Arachin 22a], for it is the way of a person before his death to worry about his debts, and perhaps there is some proof among his writings or perhaps there are witnesses to this, and when the orphans grow up they will investigate this, which is not the case in their minority. Therefore, in one of the three ways that were explained at the beginning of siman 108, we collect even from minors since there is no concern of payment. Consequently, if the creditor seized from theirs even after the death of their father, and it is in a manner that he can hold onto it to claim "it is purchased in my hand"—such as where he seized without witnesses or they did not see it now in his hand, such that he is believed to say "I returned it"—his seizure is effective for him, and he also fulfills his duty toward Heaven in this since it is known and clear to him that he was not paid by their father. And even when he comes to beit din, they rule for him that it shall remain in his hand [Urim VeTumim], and not like the one who wishes to say that even though he himself is permitted to seize when he knows clearly that it is due to him, nevertheless when they come to beit din, the beit din removes it from his hand and places it with a third party; rather, even the beit din does not remove it from his hand, for he is believed with a migo. And if the seizure is ready cash, he does not even require an oath since his debt is in his hand. And if the seizure is the equivalent of money, which is only like a pledge for the debt, the creditor must swear that he did not receive anything toward his debt. But when he has no migo regarding his seizure, such as where there are witnesses that he seized and they also saw it now in his hand, his seizure is not effective against minor orphans even when he seized during the lifetime of their father and even when he claims that he delivered it to him as a pledge, since the witnesses do not testify so and he has no migo. And some say that in one who seized coins, even if he has no migo, since he has a document and the debt is clarified, we do not remove it from him, for it is as if he was already paid, and this is not included in "we do not attend to the property of minor orphans," and he swears and is exempt [Sma and Shach, and it requires further study, for the words of Rabbeinu Yerucham seem to be speaking of adults as the Beit Yosef wrote in siman 108, section 22 in his great book, and what he wrote there "even with minor orphans" refers to where there are no witnesses, see there and the Ktzot HaChoshen and examine carefully].

One may attach the assets of a guarantor even though the orphans are minors, and even when he is not a guarantor-kablan. We do not say that since the orphans are minors and the guarantor will eventually collect from the orphans, it results in attaching the assets of minors; for the guarantor cannot collect from them until they grow up. Similarly, we do not say that since there is no ability to collect while they are minors, they are not subject to obligation at all and why should the guarantor be liable? For in truth, the obligation is cast upon them even now, but there is simply no ability to attach them until they grow up. This is comparable to a creditor who sued a debtor and he was found liable in court but has nothing with which to pay, where one collects from the guarantor. Some say that one only collects from a guarantor-kablan and not from an ordinary guarantor, for a person's assets are also guarantors, and just as one does not collect from their assets, so too one does not collect from their guarantor. But the primary view is like the first opinion, and it is not similar to assets from which one does not collect due to the loss of orphans—lest they grow up and bring evidence, as has been written—whereas when one collects from the guarantor, there is for the time being no loss to the orphans. Furthermore, the guarantor is a guarantor from their decedent, whereas the assets, even though at the time of the loan they were guarantors of their decedent, nevertheless now that the assets belong to the orphans, it is impossible to collect from them until they grow up. This is the opinion of the Rambam in chapter 25 of Malveh, and the Acharonim agreed accordingly. Regarding the assets of purchasers, it will be explained in siman 111 with the help of Heaven.

Minors whose testator commanded and said, "Give a field or a maneh to so-and-so," we attend to their property, for since he said "give," it is as if a debtor admits [to the debt], which is one of the three ways in which we attend to their property, as has been explained. And we appoint an apotropas for them to seek out their merit, to see which field to give or which maneh, or perhaps it will be within his power to nullify the command and show some flaw that exists within it. Therefore, even if he said, "Give this maneh or this field to so-and-so," where there is no need to select which field or which maneh, nevertheless we appoint an apotropas for the reason that has been explained. According to the Rambam, there is no need to appoint an apotropas in such a case, for he holds that his appointment is only to select the portion. And specifically when he commanded via a document that he wrote in his own handwriting, "Give a maneh or a field to so-and-so," and it is recognizable that it is his handwriting; but if he commanded via witnesses, we do not attend [to the property], because we do not accept testimony not in the presence of the litigant, and a minor is considered as if not in his presence [Tur]. And even though, if so, how do we validate the document not in the presence of the litigant? It can be said that this refers to a case where the writing was validated in his lifetime, or that the beit din recognizes the writing and it is validated automatically [Beit Yosef]. Furthermore, we validate a document not in the presence of the litigant, as written in siman 46 [according to what the Sma wrote in subsection 11, their words can be reconciled; see in the Beit Yosef and delve into it]. And all this is according to the opinion that will be explained in section 13, that we do not accept witnesses of a command in the presence of the apotropas; but according to the opinion that will be explained that we do accept, then even if the command was before witnesses orally, we accept their testimony and act according to his command [it appears to me]. And most of the poskim agreed with this opinion.

An adult heir who gave the assets of his decedent to a minor, and a promissory note emerged against the decedent, the creditor is placed in possession of the assets. The reason is that since the obligation of payment is incumbent upon the adult and he gave it to the minor, this is similar to one who borrowed and went to a province overseas, where the debt is collected in his absence so that every person does not take the money of his fellow and go to a province overseas, as written in siman 106. And so too, it is not within his power to abrogate the debt by way of his gift to the minor [Urim VeTummim]. According to the first opinion in the previous section, this law applies only when the document was verified during the lifetime of the decedent or while the assets were in the possession of the adult; and then, even if it was verified in his absence it is well and good, for a document is verified even not in the presence of the opposing party. However, regarding a minor, one does not verify, for we do not do two things: to collect from minors and to verify not in their presence [Sma]. But according to the latter opinion, that one also verifies the document regarding minors, one verifies it even now. Most of the poskim agreed with this opinion, and so one should instruct.

Minor orphans who are found to possess land that is not theirs, and a claimant argues that it was stolen by their benefactor, we attend to them. And if it is found to be stolen, we return it to its owners, for regarding theft we do not say that we do not attend to minor orphans. And in such a case, we accept testimony during their minority; the sages only said that we do not accept testimony when they are minors regarding that which is in their father's presumptive possession and the other party comes to extract it from them, but regarding theft, we accept it. This is the opinion of the Rambam, of blessed memory, in the twelfth chapter of Hilkhot Malveh [Maggid Mishneh ibid.]. And some say that this is specifically when the testimony was received during the father's lifetime, or if he produced a verified document that it is his, having purchased it from the father, and the like; but without this, we do not accept testimony during their minority. According to the Rambam, the beit din must appoint an apotropas for them to plead and litigate, and the appointment is only before they have received the testimony, but after they have received testimony that it is stolen, we no longer appoint an apotropas, for we do not presume witnesses to be lying [Shach and Urim VeTumim].

And not only this, but even if the claimant admits that the field or the house belonged to the father of the minor, but that he purchased it from him, and the minor does not have a chazakah of fathers—in that it is not held in the mouths of all that it belonged to the father of the minor—even though the minor now dwells in it or works the field, and this claimant says he will bring witnesses that he purchased it from his father, we accept their testimony. We do not say to wait until he grows up, since the minor does not have a chazakah of fathers in this. And likewise, even if he has a chazakah of fathers but he does not dwell in it now, and this claimant dwells in it, even if the minor came with force, having brought his servants or his relatives and removed this person from the house or from the field, we accept the testimony of the claimant immediately. But if he has a chazakah of fathers and also dwells in it now, and a claimant comes to bring witnesses that he purchased it from his father, even if he has witnesses that he held it and consumed its produce for the years of chazakah during the lifetime of the father of the minor, we do not remove it from the hand of the minor and we do not accept their testimony until he grows up. But if the claimant produced a deed showing it was purchased in his hand, he may verify the deed and we remove it from the hand of the minor after we appoint a guardian for him. And according to the first opinion in section 6, we do not verify the deed now and we do not remove the minor unless the deed was verified during the lifetime of the father of the minor; and we have already explained that most of the poskim disagree with this opinion. And there are those who say that when the minor has a chazakah of fathers, we remove it from the hand of the other even if the minor does not dwell in it now, and we remove it from the other and hand it over to the minor until he grows up, and then they will accept the testimony. However, the primary ruling is according to the first opinion [Urim VeTummim], for such is the opinion of most of the poskim. And that which the minor removed the other with force is not considered a chazakah at all such that we should consider it as if he dwells in it now, for the world is not ownerless, and what one does by force does not diminish the power of the possessor [Rashal and Urim VeTummim], unlike the one who disagrees in this.

Since it has been explained that regarding what the orphans possess we wait for them until they grow up, therefore, one who comes to beit din and cries out against minor orphans that he suffers damages from them in that they do not pay him, and the matter was not done through a beit din or an apotropos, but rather he cries out that because they do not pay him what is due to him he has damages [Urim VeTumim], we do not attend to his outcry. Since the matter is not known if his words are true, we do not appoint an apotropos for them to litigate with him while they are minors, unless it is public knowledge that they are damaging him directly, and then we remove them, but they do not pay for what they damaged as is written in siman 96. And so too if their ox causes damage, we appoint an apotropos for the ox as the Tur wrote in siman 406. And whenever there is reason to doubt or hesitate in the matter, we wait until they grow up. And some say that we always appoint an apotropos against one who comes to claim against orphans, whether there is substance in the claim of the apotropos or not, for perhaps he will reach a compromise with him for the benefit of the orphans [Sma]. And this is specifically when it is not a claim of "this is a stolen field in their possession," for regarding a claim of a stolen field it was explained in section 8 [ibid.]. And it is forbidden for the apotropos to plead a false claim, but he is able to plead even an uncommon claim and can plead that nevertheless perhaps it was so, and through this he will reach a compromise with the one crying out against them; and it appears that such is the custom according to this opinion.

Minors whose testator admitted in his handwriting regarding movable property in his possession that they are from a business venture he has with a certain person or that it is a deposit in his possession belonging to a certain person, we remove it from them and validate the handwriting even after his death. According to the first opinion in section 6, we do not remove it from the minors unless it was validated during their father's lifetime or the handwriting is recognized by the beit din and does not require validation. We have already explained that the primary rule in law is that we validate it even now. If an admission was found regarding money, if there is a concern that perhaps he paid during his lifetime, we do not remove it from them even in the case of adult heirs. If there is no concern that perhaps he paid, we remove it even from minors, just as with movable property [it appears to me], and as I wrote at the end of siman 107. Similarly, if their testator stole, they are obligated to pay, whether they consumed the stolen object or did not consume it, whether the owners despaired or did not despair. Even if they despaired during the owner's lifetime, the heirs do not acquire it through despair and change of domain, for an heir is the leg of his father and stands in his place, as will be explained in siman 361. We collect the stolen object whether from real property or from movable property that their testator left, for now movable property is like real property, as I have written several times. According to the first opinion in section 8, we accept testimony during their minority, and according to the latter opinion, it is only when the testimony was accepted during their testator's lifetime or it was found in the validated handwriting of their testator. Most of the poskim agreed with the first opinion, and we appoint an apitropos for the orphans, as I wrote there.

That which our sages, of blessed memory, said, that one does not collect from minor orphans, this is specifically regarding the affairs of their testator. However, a beit din or an apotropos who borrowed for the needs of orphans are like owners, and one attends to their properties and sells without public announcement so as not to lock the door before them. And one collects from medium-quality land like other creditors. And similarly, a beit din that sold from the properties of orphans, the responsibility remains upon the orphans, as was written in siman 109, for when the land is seized from the buyer by law, the buyer collects from the properties of the orphans without public announcement, and his law is like other creditors to collect from medium-quality land. But if the minor orphans borrowed by themselves without a beit din and without an apotropos, one does not attend to their properties until they grow up, and one does not appoint an apotropos for them to receive the testimony, for the lender caused his own loss by lending to them without a beit din and an apotropos. And this too is specifically when the minors do not admit to the loan and it is necessary to litigate with them; but when they admit to the loan, or to the taking of an object, or to other matters of negotiation, and they have reached the age of pe'otot, one collects from them immediately, as will be explained in siman 235 and was explained in siman 96.

In every place where it has been explained that we appoint an apotropus for them in order to attend to their properties regarding the affairs of their testator, the opinion of many of the great Rishonim is that we receive testimony in the presence of the apotropus, for an apotropus is like the litigant himself. Similarly, regarding witnesses of a will, we receive them in the presence of the apotropus. And there is one who wrote that we do not receive them in the presence of the apotropus; and according to this opinion, it is not found that one who leaves orphans would have his will sustained except when he delivers his words to a beit din, or if the witnesses wrote his will in a document and signed it during his lifetime, and when he dies, they write in it that he died from that illness and sign upon it [our teacher, the Beit Yosef], and their signatures must be recognizable to the beit din [Sma]. And all the more so if the sick person himself is also signed upon it and his signature was verified, and it is known that he died from that illness and did not retract the will, even when there are no witnesses signed upon it but they merely testify so [it appears to me]. And we have already explained that most of the poskim agreed to the first opinion in section 8 and to the last opinion in section 6. And some say that regarding a handwritten document, according to all opinions, it is specifically required that the beit din recognize his signature [Acharonim]. And some say further that witnesses of a will are received even without an apotropus according to all opinions; and the reason is that in a clear matter where there is no concern, such as a will, we receive even not in the presence of the litigant, for the primary concern of our sages, of blessed memory, for minor orphans was in a matter where there is a concern, and not in a clear matter. Therefore, it is permitted to receive witnesses of a will in the presence of minors, and the same applies to any clear matter that the minor is liable for, even if it is from the affairs of his testator [it appears to me], and it seems that such is the custom.

For the ketubah of a woman, there is no need for the appointment of an apitropos, because in several matters the sages, of blessed memory, were lenient regarding the ketubah for the sake of the benefit of women, as is explained in Even HaEzer; therefore, the beit din acts on its own according to the law.

When the sages, of blessed memory, said we appoint an apitropos, they only said this to ease the burden on the beit din, because it is impossible for the beit din themselves to supervise all the affairs of the orphans, to search for their merits, and to oversee their business dealings. Therefore, if the beit din desired to take the burden upon themselves, there is no better apitropos than them, and there is no need for the appointment of an apitropos, for the beit din are the fathers of orphans. It has already been explained that the beit din has the power to mediate in the affairs of orphans when it appears to them that this is for the benefit of the orphans, and they have the authority even to waive their money, as written in siman 12. However, the apitropos does not have this power unless he acts according to the counsel of the beit din, for then his hand is as their hand, provided that his intention is for the sake of Heaven for the benefit of the orphans [it appears to me].