Siman 290

One who is close to death and leaves behind minor heirs, or adults and minors, or if his wife is pregnant—and even if they are all adults and there is concern that perhaps the fetus is male and has a portion in the properties [Beit Yosef]—the testator must appoint an אפוטרופוס to occupy himself on behalf of the minors until they grow up. And it appears to me that the father can only appoint an אפוטרופוס over the portion of the minors; but to appoint him to also manage the portion of the adults, he cannot, if they do not consent to it. For as soon as he dies, his properties fall to the heirs, and he has no say in what his adult sons shall do with them, unless he hands over the properties during his lifetime as a gift to others. And so it is proven from what has been explained at the beginning of siman 250, see there, and as will be explained at the end of this siman. And only over the portion of the minors does he have the authority to appoint an אפוטרופוס, for if he does not do so, the beit din will do so, as the minors do not have the capacity to manage. And according to this, he must necessarily make a division before his death, for if not, he will not have the power to appoint an אפוטרופוס, and necessarily the adults will manage the properties and improve them, and the improvement will belong to everyone, as written in siman 287. And if they wish to divide, the beit din will establish an אפוטרופוס for the minors and they will make a division, as written in the previous siman.

And it appears to me that this is the intention of the Rambam and the Ra'avad, who wrote in the tenth chapter of Hilkhot Nachalot: One who died and left heirs who are adults and minors, he must appoint an apotropus who will deal with the portion of the minor until he reaches adulthood. Thus far the words of the Rambam. And the Ra'avad wrote: And that is if he divided for them during his lifetime; but if he did not divide, he should leave everything in the hands of the adults, and they will improve the property for the middle, and it is better for them. Thus far his words. The explanation of the matters is that the Rambam says that he should appoint an apotropus over the property of the minors, for over the property of the adults he does not have the power to appoint an apotropus, as has been written. And to this the Ra'avad added that according to this, he must divide during his lifetime, for if not so, he does not have the power to appoint an apotropus, and automatically, when he did not divide during his lifetime, even if he appointed an apotropus, there is nothing in his appointment. And of necessity he must leave all the property in the hands of the adults, and it will be better for the minors in this, that the improvement will be for the middle.

There are some among the commentators who wrote according to their understanding of their words that when the adults are people who are able to manage the assets, it is better that the adults manage them than to appoint an אפוטרופוס over the portion of the minors. And it is a wonder to me, for if so, why did the sages advise the father to appoint an אפוטרופוס, and why did they not advise him that he should command that the adults manage the assets? Rather, it is certainly so that one should not do this ab initio, so that they do not oppress the minors. Furthermore, who is to say that they will agree to this later, and perhaps they will wish to divide, as is written in siman 289. And certainly it is better to appoint an אפוטרופוס over the portion of the minors, and only the Ra'avad, of blessed memory, teaches us how to act, for if he does not divide the assets, he does not have the ability to appoint him, and of necessity the adults will manage the assets. And that which he says, "and it is good for them," means that in this it is good for them that they take a portion of the profit, but not that ab initio it is good advice that the father choose this path, unless the father is certain of the righteousness of the adults, that they will not do injustice to the minors; and this is a distant thing to be found in such cases, except in a minority of a minority.

If the testator commanded that the portion of the minor be given into his hand and that he may do with it as he wishes, he has the authority to do so, for a person may do with his property as he desires. Similarly, if he appointed as an apotropus over the minors a minor, or a woman, or a slave, or a gentile, he has the authority to do so. This is what we find sometimes in the Shas, that a minor has no apotropus; and why does the beit din not appoint an apotropus? Rather, it is a case where the father commanded to hand it over to the minor and not to appoint an apotropus [the Maggid Mishneh]. And if one said to a shechiv mera, "Is it your will that I shall be the ruler over your property?" and he said "Yes," this is a language of apotropus-ship, and similarly with other languages, such as if he said, "Is it your will that I shall be the leader, or the overseer, or the manager of your property?" And one who was an apotropus over his property during his lifetime and he died and did not command anything, they do not leave him to be the apotropus over his orphans, for perhaps during his lifetime their father knew that against him he would not dare to do wrong or pervert the property, but against the minor orphans he would pervert it; rather, the beit din appoints one who is fit to be an apotropus. Or, if this man himself is a trustworthy man known to the beit din, they shall appoint him, for this man is not called an apotropus appointed by the father of the orphans, as that is only when he appointed him close to his death, but not one who was a leader of his property during his lifetime. And when the beit din sees a man who is in possession of the property of orphans and conducts himself with them as an apotropus, and according to the sight of the eyes of the beit din he is not fit to be an apotropus, and he says that the father of the orphans appointed him, the beit din does not leave him until he brings clear proof that the father of the orphans appointed him, even though he is in possession of the property. And if he did not bring clear proof, the beit din removes him and appoints one who is fit for this.

And one who died without a will and did not appoint an apotropus, and also did not command not to appoint one, beit din is obligated to establish an apotropus for the properties of the minor orphans or for the fetus until they grow up, for beit din is the father of minor orphans. And beit din refers to the rabbi and the judges in the city who were appointed as a beit din or are known as the greats of the city, and three ordinary men do not have the power to make themselves a beit din over the orphans; rather, they must inform the beit din. And if there is no beit din in their city, they shall inform the nearby beit din and they shall act as is proper. And if the beit din themselves wish to involve themselves in the needs of the orphans, the authority is in their hands. However, when they need to perform a division or to argue with others on behalf of the orphans, some say that they must establish an apotropus and not the beit din themselves, so that they do not appear like legal advocates, for they must of necessity side in favor of the orphans, and it is not fitting for a beit din to side for one party. And it is not similar to when a beit din removes the apotropus from his position when he does not act as is proper, as will be explained, for that is certainly proper for the beit din to do themselves; but in a matter of division and arguments with the opposing party, it is better that another argue on their behalf.

The Rashba wrote in a responsum that when one appointed two apotroposim and one of them died, the second shall lead alone, and the beit din or the community do not need to appoint another in place of the second; for certainly such was the intent of the appointer, as if we were to say his intent was that only two shall engage and not one, then if one of them were to go for a few days for his business, the appointment would be voided, and this is not the mind of the appointer. This was cited in Yoreh Deah siman 258. And there are some of the great authorities who questioned this, for certainly when he appointed two, his intent was not to trust one permanently; for certainly if one traveled for a few days, the second can lead alone, as when he returns he will examine the actions this one performed. But when one of them dies, there is no logic at all to rely on the one alone when he appointed two. And certainly, it is as their words. And it appears to me that even the Rashba, of blessed memory, only said this because the custom among them was such, not to appoint another in place of the deceased, as is implied by his words in his responsum. But according to the law, when one of them dies, they shall appoint another in his place, and such is the custom now, that when they appoint two appointees over any matter and one of them dies, they appoint another in his place [Taz ibid.]. And one who said "Reuven and Shimon shall be apotroposim," his intent is for both of them; and even though in the language of the Torah there is sometimes a "vav" that divides, nevertheless in the language of men it is not so, and all the more so when he spoke in the vernacular [Ktzot HaChoshen].

Even though it is in the power of the bequeather to appoint whomever he desires, the beit din does not appoint as an apotropus a woman, a slave, a minor, a gentile, or an am ha'aretz who is suspected of transgressions. Furthermore, a boor is not God-fearing and will permit himself to waive what belongs to the orphans, for on all of these it is impossible to rely to conduct an apotropus-ship for a long period. Rather, the beit din examines for a trustworthy man and a man of valor who, if anyone robs the orphans, will extract the stolen property from his hand, and who knows how to argue in favor of the orphans in litigation that the orphans may have and argues their claim, and stands in the breach for them, and possesses strength and knowledge in worldly affairs in order to guard the properties and to profit with them. And they appoint him over the properties of the minors, whether he be distant or whether he be a relative to the minor; except that if he were a relative, he shall not descend to the lands, as has been explained in siman 288. However, for an apotropus-ship, the beit din can appoint even their closest relative if they see that he is a fit man and capable for the apotropus-ship. And also, the beit din can appoint a relative of the beit din as an apotropus if he is worthy of it, for a relative is only disqualified for testimony and for judgment.

A beit din has the authority to pay the apotropus from the property of the orphans for his exertion when they see that he is fit to be appointed as an apotropus, but according to his circumstances, he is unable to leave his own affairs and engage with the property of the orphans, and to obtain such a person for free is impossible; or if they see that if they impose upon someone to act for free, the property of the orphans will be damaged, they have the authority to pay the apotropus for his exertion according to their assessment. However, in such a case, they should not appoint their own relative, so that they are not suspected that their intention is for the benefit of their relative [Taz]. But to a relative of the orphans they may pay, for in this matter it is not relevant that they should suspect them. And the apotropus is permitted to wear fine garments from the property of the orphans if the beit din sees that this is for their benefit so that his words will be heard. And some say that the orphans can protest against him so that he does not wear from theirs, just as they can protest against the eldest of the brothers, as written in siman 286. And it appears to me that it is not comparable, for there the hand of the beit din is not involved in this; rather, the sages said generally that if the eldest of the brothers wore important garments, one does not protest against him, for presumably it is for the benefit of the orphans, but initially he should not do so, as written there. But regarding an apotropus whom the beit din appointed, and they know that in this will be the benefit of the orphans, it appears that just as the minors do not have the power to protest against the beit din so that they do not appoint an apotropus at all, so too they lack the ability to prevent that which the beit din sees as their benefit in this, for they lack da'at and the beit din understands their benefit better.

When a beit din appoints an apotropus, they must calculate with him all their assets and write an account of the movables, the lands, the debts, and every matter they hand over to him; for we impose an oath upon him regarding a certain claim, and also regarding an uncertain claim, as will be explained. Therefore, the beit din must know what he receives and what he will return to the orphans when they grow up. They write two identical documents: one shall be in the hand of the apotropus and one in the hand of the beit din to know what he receives, so that the orphans will know what is theirs. They hand over to him all the assets—the lands and the movables that have not yet been sold or that do not need to be sold—and the promissory notes. He brings out and brings in, builds and destroys, hires workers, plants and sows, conducts business, and acts according to what he sees as good for the orphans. He feeds them, gives them drink, clothes them, shoes them, and provides for all their needs. He gives them the expenditure according to the value of the estate and according to what is appropriate for them; he shall not lead them with excessive luxury, nor shall he be overly restrictive with them. Also, if the widow and the daughters need to be sustained from the assets, or the tenth of the assets for their marriage, it shall all be through him. He shall make a ledger and write the expenditure and the income.

A beit din that appointed an apotropus and heard regarding him that he eats and drinks and incurs expenses beyond that which he was estimated to possess, the beit din must be concerned for this, lest he is eating from the property of the orphans, and they remove him and appoint another in his place. And it appears to me that the beit din can administer an oath to him as to whether he has stolen from that which belongs to the orphans, for when the beit din appointed him, they can administer an oath to him even on a claim of doubt, as will be explained, and especially when there is a basis for the matter. However, an apotropus whom the father of the orphans appointed, they do not remove him due to doubt, and they say perhaps he found a find; for since he appointed him, the beit din should not remove him due to doubts. But if witnesses came that he is wasting the property of the orphans, or if it became clear to the beit din based on a clear assessment, they remove him and administer an oath to him, and however much he wasted he shall pay to the orphans. And there are those who say that even when the beit din appointed him, they do not remove him unless witnesses came that he is wasting, and the primary view appears like the first opinion.

The same applies to an apotropus whom the father of the orphans appointed, and his reputation was good and he was upright and pursued mitzvot, and he reverted to being a glutton and a drunkard and follows ways of darkness and ways in which there are suspicions, or he is breached in fences and in the dust of theft; even though it has not been clarified in detail that he stole from the property of the orphans, they are obligated to remove him and to administer an oath to him. For since his ways have changed, it is certain that it would not be pleasing to the father of the orphans, and such was his presumed will at the time of his appointment: that if he should become corrupted, they should remove him and the beit din should find a fit man. And the principle of all these matters is according to what appears to the beit din. But if he followed this path during the lifetime of their father, they do not remove him, for he desired this [the Maggid Mishneh].

The Rambam, of blessed memory, wrote in the eleventh chapter of Hilkhot Nakhalot: Money of orphans that their father left for them does not require an apotropus; rather, what is done with it? They examine who possesses property that has achrayut, and they should be superior properties, and he should be a trustworthy man who heeds the words of the Torah and has never accepted a nidui upon himself, and they give it to him "close to profit and far from loss" [for they were lenient regarding orphans]. And if he does not have land, and he gave them a pledge of broken gold which has no siman, they give him the money "close to profit and far from loss." And why do they not take a pledge of gold vessels or gold jewelry? Perhaps it belongs to others and they will provide a siman and take it after his death, if the dayan knows that he is not of such means. And how much do they stipulate in profit? According to what the dayanim see, whether a third of the profit or half; even a quarter of the profit to the orphans—if they saw that this is an enactment for their benefit, they do so. If they did not find a person to whom they could give the money "far from loss and close to profit," they take out from it sustenance little by little until they purchase land for them with the money and hand it over to an apotropus who will manage it for them. Thus far his words. And even though even in broken gold there is a siman of weight, and we maintain regarding a lost object that it is a siman as written in siman 267, it can be said that specifically regarding a lost object is it a siman, for we do not remove it from the possession of the other; but here, where we claim that it belongs to the father of the orphans, one cannot remove it from his possession based on a siman of weight, but only with a siman muvhak [Nemukei Yosef, chapter 5 of Bava Metzia]. And even though the Rambam calls this and its like among these simanim "muvhakim," we have already explained there that regarding a lost object they are called muvhakim; see there.

We have learned from what has been explained that one does not engage in business with the money of orphans, lest they lose it; rather, one gives it for half-profit, or a third, or a quarter, and they shall not suffer from loss at all. And one gives it upon secure pledges, and that there should be no concern that they belong to others, or to a man who has known properties that can serve as security for the money, and that he be a trustworthy man; for since the pledge is not in our hands, we require his trustworthiness so that he does not find a pretext to say that he did not profit and accept upon himself a ban that it is so. And it appears to me that what the Rambam wrote, "purchasing land after all this," refers to when there is no land ready to buy and there is concern that in the meantime they will consume the principal; but when there is land ready to buy, there is nothing better than this. And in our time, when we do not have lands, and also such pledges are not common at all, the simple custom is to search for the most secure person in the city and hand it over to him as an iska for a small profit, or they lend to officials who have lands and take from them a promissory note that has validity in the courts. And one must be very careful with the money of orphans. Our teacher, the Beit Yosef, cited in the name of the Rashba, of blessed memory, that with the money of orphans one does not engage in commerce by sea. Thus far his words. And it implies that on land one may engage in it; and it is possible that he said this as a greater novelty, even though there is much profit in it, for from the Rambam, of blessed memory, whom we cited, it implies explicitly that one does not engage in commerce with them.

And that which the Rambam wrote, that a guardian is not required, the reason is simple: since there is no great exertion here, the beit din themselves can also do so. However, the Tur wrote that it is better to appoint a guardian, and he will strive to seek a person worthy of receiving them, for he will strive more with them than the beit din. And that which the Sages, of blessed memory, said, that they should give them in beit din, is not to say that the beit din should give them to him, but rather the guardian should give them to him in the presence of the beit din. Thus far his words. And also from the Rashba and the Nimukei Yosef there, it appears so. And it is possible that even the opinion of the Rambam is not a requirement, but rather to say that it does not necessitate a beit din; nevertheless, if the beit din wish to act through a guardian, the authority is in their hands. And so it is implied from the Levush, see there, for in truth the beit din are very preoccupied, and it is impossible for them to strive as much as the guardian who was appointed for this. And a guardian who lent the money of orphans when he should not have lent to such people, the beit din remove the money from the hand of the borrower and return it to the orphans; for since they can remove even the guardian, it is obvious that they can remove it from the borrower who comes by power of the guardian, and they nullify everything he did with him. And if it is not possible to remove them from the borrower, and if the money was lost, the guardian is liable to pay, for he was negligent. And even if the borrower is an honorable and decent man, nevertheless, if the guardian knew that his situation was not good and that he owed much to others, he should not have lent to him and was negligent in this, unless he brings proof that he was not negligent, such as that at that time the borrower was in a good situation or the like, for then he is exempt from payment [Maharik, Shoresh 23].

Some say that just as the apotropus may give the orphans' money to others, so too he may take the money for himself as "close to profit and far from loss" if he is a wealthy and secure man, provided that he does this in beit din because of "evil talk," so that they should not say of him that he is profiting for himself from the orphans' money. And even though regarding a mashkon it was explained in siman 72 that to rent it to himself is forbidden because of suspicion, it is different here, for since he acts according to the beit din, there is no suspicion. And even though regarding a pikadon we hold that when it is necessary to sell it, he should sell it to others and not to himself, even according to the beit din, as will be explained in siman 292, it is not comparable; for regarding orphans, the beit din are like the father of the orphans, and just as their father could have done so, so too the beit din are like their father in this specific matter and there is no suspicion [Sma]. Furthermore, regarding a pikadon, the object remains forever in his hand and there is certainly suspicion, which is not the case with a loan for a set time; and also, the matter is not as recognizable as the objects of a pikadon and there is no suspicion, especially when he acts according to the beit din.

It appears to me that there is no distinction regarding the money of orphans between an apotropus appointed by a beit din or one appointed by the father of the orphans. For even in the case where the father of the orphans appointed him, if he was negligent in a loan that he lent to someone to whom he should not have lent, he is obligated to pay. This is not only according to what our teachers, the authors of the Shulchan Aruch, ruled, that he is liable for negligence, but even according to the one who holds that it is a legal doubt in the case of one appointed by the father of orphans whether he is liable for negligence or not, as will be explained; nevertheless, if the money was lost, he is obligated to pay, for this is worse than negligence and is like one who destroys with his own hands. And although there is one who is uncertain about this, nevertheless, this appears to be the primary ruling. However, it is impossible to clarify in writing what is called negligent in a loan, and it depends on the perception of the beit din, for sometimes there is a man who is not very wealthy but his business proceeds straightforwardly, and he is more secure than a great wealthy man whose business proceeds crookedly. For to lend on broken gold or on lands is difficult to find in our times. And any apotropus who wishes to fulfill his duty toward Heaven should not make any loan without the permission of a beit din, and then he bears no responsibility.

An apotropus who lent the money of orphans to someone, and a contradiction arose between the borrower and the apotropus, where the borrower says "I paid" and he contradicts him, or the borrower says "I paid such and such" and he says "you paid less than this"—if the borrower admits that the money belongs to orphans, the apotropus is believed without an oath, for his law is like that of a third party, since he has no personal interest in the matter, and a third party is believed without an oath. But if he claims "I do not believe you that they belong to orphans," he does not need to swear that they belong to orphans, for this is a claim of uncertainty; however, he must swear that he did not pay him, or that he only paid such and such [Mordechai, chapter 5 of Bava Metzia]. And this is specifically when the apotropus himself lent it to him and the borrower knew that the money belonged to orphans, and it turns out that he himself made him a third party and trusted him. But when he did not lend it to him himself, his law is not like a third party, for who says that he trusted him over himself, as written in siman 56 [Shach]. And his law is only like a single witness, and the borrower takes a biblical oath to contradict the witness and is exempt. And this is specifically regarding a loan without a shtar, but with a shtar he is not believed to say "I paid," as written in siman 82. And a shtar in his own handwriting was explained in siman 69, and one who impairs his shtar or reduces it was explained in siman 84. And there is room to doubt if the apotropus is also equal to the lender himself regarding the matter of impairing his shtar, that he should not be paid except with an oath, since he did not lend it to him and did not make him a third party; or perhaps since it is a rabbinic enactment, they did not enact it for an apotropus. But where one witness testifies that it is paid, it is simple that he should not be paid except with an oath, since it is a biblical oath. And if their father lent it to him and one witness testifies that it is paid, it was explained there in siman 84.

And there is a question here, for how can we say that the apotropus is trusted like a third party? Is he not an interested party, for he must pay the orphans according to the account in their possession? And some wish to say that in truth this law does not apply when he is appointed over their property, but only when he is appointed to argue their claims. However, from the source of the law it does not imply so. And it must be said that it deals with a case where the orphans would not be able to claim from the apotropus, such as where the father of the orphans or the beit din appointed him so that he would have every law of the status of trust without an oath, or where he is able to say that it went toward the expenses of the orphans and it is not possible to contradict him. But in a place where they can truly claim from him, his law is not like a third party, and he is not even like a witness [see Netivot HaMishpat].

The Tur wrote: One who has in his possession merchandise from the property of orphans, such that there is a concern that if he delays it until it increases in value perhaps it will spoil, or if he transports it to the markets perhaps it will be lost to an accident on the way—he should not say, "I will do with them as I would do with my own," but rather he should do nothing with them except by the authority of the beit din. And similarly, the sale of the movable property of orphans is entirely according to the assessment of the beit din; according to what appears to them to be a benefit, so shall be done with them, whether to delay them until the market day or to sell them immediately. And it appears that this does not refer to anyone except one in whose possession they are but who was not appointed as an apotropas, but the apotropas does not further require a beit din, but rather shall do as appears best to him. Thus far the words of the Tur. And some say that even this person who has in his possession from the property of orphans is no worse than orphans who rely upon a householder, whose law is like an apotropas, as will be explained in section 42, and nevertheless he specifically requires a beit din, and if so, the same applies to an apotropas. But in truth they are not comparable, for this person who has from the property of the orphans in his possession, it is possible that it was still deposited with him by their father, and his law is not like an apotropas at all. And regarding orphans who rely [upon a householder] itself, it is impossible to say that they would have the power to act without a beit din, for who knows his actions? And even though his law is like an apotropas, nevertheless in trade he has no permission [and see in the Rosh, chapter 5 of Gittin, siman 6].

The Rambam, of blessed memory, wrote there: All movable property of orphans is appraised and sold in beit din, and if the market was close to the province, they are brought to the market and sold, and their proceeds are joined with the money of the orphans. Thus far his words. And they shall provide them as an iska, close to profit and far from loss [Sma]. And the Rambam is dealing with a case where there is no apotropus, for so it is proven from the arrangement of his words, as he wrote the matter of an apotropus afterwards. And so it is implied from the words of our teacher, the Rema, and this is according to the words of the Tur, that an apotropus does not require a beit din. Furthermore, it is explained from his words that specifically when the market is close to the city do they bring the merchandise of orphans, but when it is far, they shall not bring them to the market, for perhaps an accident will occur; rather, they shall sell them here even though they will be sold cheaply, for one may not place the money of orphans in a situation of possible loss even though the profit could also be great.

And he wrote further: One who had in his possession wine or beer belonging to orphans—if he leaves it here until he sells it, perhaps it will sour, and if he brings it to the market, perhaps an accident will occur on the way—behold, he acts with it in the manner that he acts with his own, and so too anything similar to this. Thus far his words. And this does not contradict the words of the Tur, who wrote that one should not say "I will act with them as with my own," for certainly the Rambam also holds so in a case where on one side there is no concern for a cause [of loss] and the profit is small, and on the other side there is concern for a cause [of loss] and the profit is great; it is simple that one should not jump at a great profit even though a person would do so with his own. But in this case, where there is a cause [of loss] on both sides, as with wine and beer where it is impossible to sell it here immediately, and to delay it there is a fear that it will sour, and to bring it to the market there is a fear of an accident on the way, and of necessity one must choose one of the two sides, he automatically acts as with his own, and whatever he chooses, he chooses. And as for the Tur requiring a beit din, it appears his intention is that nevertheless, if according to the sight of the beit din the cause [of loss] is not prepared [imminent], and they say to delay or to bring to the market, the authority is in their hands, and he himself is not permitted to act without a beit din. But in this case where it is necessary to choose one of the sides, a beit din is not required. And there is one who says that according to the opinion of the Tur, even in this case a beit din is required [Shach]. However, this is according to all opinions: that it is in the power of the beit din to act to send to the market even though it is possible to sell all of it here immediately with a small profit, since the beit din sees that there is no concern of a cause [of loss] in this.

Our teacher, the Beit Yosef, wrote: One may not send the movable property or merchandise of orphans by sea, nor by a path where there is a doubt of an unavoidable accident, except for wine or beer where there is a concern that it might sour, as has been written; and similarly in any such case. Thus far his words. And it implies that even by the authority of a beit din one may not do so, since the cause of danger is near, such as the sea which is prone to incidents. However, in a place where the cause of danger is not near, like our ordinary roads, one could say that he also admits that by the authority of a beit din one may do so, as is implied by the wording of the Tur and as has been written in the previous section.

An incident occurred involving Reuven, who lent the money of orphans to the servants of the bishop on pledges of silver vessels, and the matter continued for several years. The guardian of the orphans came and wanted to take the pledges with him and bring them to the place of the orphans, which was less than a day's journey from here, because there are wealthy people there and it would be possible to sell them and save the principal and the profit. Reuven says that he fears false accusations and wants to give for them what they would be appraised for here. They ruled that the law is with the guardian, and the orphans are not obligated to suffer a loss because of his fear, and who compelled him to lend to them? Therefore, if it is his desire to give the principal with the profit to the guardian, he can prevent him from bringing them there, even though there he would receive more; but if not, he cannot compel him [Netivot HaMishpat]. And it appears to me that if he made the loan by the authority of a beit din, he only needs to pay what they would appraise here, since he acted with the permission of a beit din. And it is possible that even this is not necessary, for since he acted by the authority of a beit din, it is obvious that he is not obligated to enter into danger because of this, and consequently he does not need to put forth even a perutah from his pocket. Therefore, they should seek another counsel in this, to borrow against them in another place in this city and the like [it appears to me].

Our sages, of blessed memory, said [Gittin 52a] that an apotropus is not permitted to litigate to their detriment in order to benefit them. Rashi explained that if they litigated in order to benefit them and they were found liable, the orphans do not suffer loss. Most of the poskim explained similarly, and the explanation is that if someone had a claim against the orphans and the apotropus stood with him in judgment, if he won on behalf of the orphans, the judgment is a judgment; but if they were found liable in judgment, the orphans do not suffer loss. This is the wording of the Tur: If a person had a claim against the orphans, the apotropus should not plead on their behalf to litigate with him, lest he be found liable in judgment; but if he entered into judgment with him and won, the judgment stands. Thus far his words. And as for why he did not write that if the orphans were found liable his judgment is not a judgment, it is because it is a simple matter; he only comes to teach us that you should not say that since if he emerged liable he has done nothing because he had no permission for this, and if so, even when he emerges innocent his judgment is not a judgment—he comes to teach us that when he emerges innocent, his judgment is a judgment [Bach]. Our teacher, the Beit Yosef, also wrote according to the wording of the Tur in section 12 [and see Tosafot Kiddushin 42a, s.v. "Ela"].

The Rambam wrote there: And they are not permitted to adjudicate and to incur a liability in order to gain a benefit for the orphans, lest they do not gain the benefit and the liability remains established. Thus far his words. And the Ra'avad wrote: This is not the way; rather, he adjudicates to gain a benefit, and if he gained a benefit, the orphans have gained it, and if he incurred a liability, he has not incurred a liability for the orphans, for an apotropus has no authority to incur a liability for orphans, neither ab initio nor ex post facto. Thus far his words. And it appears explicitly that the Rambam explains that if he emerged liable on behalf of the orphans, his judgment is also a valid judgment, because there is no logic to say that the judgment shall be upheld only on one side, for if you say so, the attribute of justice is impaired. And on this the Ra'avad disagreed, that even ex post facto the judgment is not established to their liability, like the commentary of Rashi. And the commentators understood even regarding the Rambam that to their liability the judgment is not established, and according to this the difference is that according to the Rambam he may not descend to adjudication ab initio since he can only descend on one side, and according to the Ra'avad he may descend even ab initio to adjudicate only to gain a benefit. And it is a wonder in my eyes to say so, and the wording of the Ra'avad proves explicitly that he only disagrees with what the Rambam wrote, that ex post facto his judgment is a valid judgment even for liability. And in any event, for the halacha, it is certainly correct that the beit din should say to the plaintiff: Wait until the orphans grow up, for the apotropus can only descend to gain a benefit and not for liability, and if despite this he descended to adjudication, he has caused his own loss. And so ruled the Levush and the Sma, that even if we say the intention of the Rambam is like our words, we establish the law like the majority of the poskim. However, in the Yerushalmi, chapter 5 of Gittin, it is explicit like the Rambam and like our explanation, and there is a dispute there regarding this, for Rabbi Yochanan ben Chanina holds that even to gain a benefit his judgment is not a valid judgment, and Rabbi Yochanan holds that if they incurred a liability, they incurred a liability. And if so, the halacha requires further study; and see what I wrote in section 31.

The beit din does not claim on behalf of orphans a claim regarding an uncommon matter, such as a claim of duress, even though their father could have claimed so; the beit din does not advocate for them except in a common matter. Nevertheless, if the apotropos claimed an uncommon matter, his claim is a valid claim, for he is like the litigant himself. Therefore, for this reason as well, it is good to appoint an apotropos so that it will be within his power to claim whatever he desires. Nevertheless, it is forbidden for him to claim a claim that he knows clearly is not so; he may only claim based on doubt, just like their father [Sma]. And a great principle must be known: that which has been explained in every place, that the beit din claims for an heir in a common matter, this is specifically when the heir himself does not know clearly against the claim they wish to claim on his behalf. But when he himself knows that it is not so, the beit din should not claim, saying perhaps he does not know clearly [Sma]. And so one should interpret the intention of our teacher, the Rema, at the end of section 12; see there.

An apotropus has the authority to sell animals, fields, vineyards, and slaves to feed the orphans if they have no sustenance from another source. The sale of animals precedes slaves, for animals are more commonly purchased than slaves; and the sale of slaves precedes houses, for with a slave there is a concern that he may die; and houses precede fields and vineyards, for with houses one must concern himself with fire [it appears to me]. Everything is according to what his eyes see for the benefit of the orphans; therefore, if according to what his eyes see there is more benefit for them in the sale of the slave than the sale of the animals, and so too in any similar case, he may act accordingly. This is also implied by the wording of the Tur, see there. It was specifically for their food that it was permitted to sell all of these, but one may not sell and set aside the money in order to lend it out, for money is more prone to loss, and furthermore, in all of these there is the prestige of their father's house, and it is a beauty and honor for them [Rashi]. So too, one may not sell fields to buy slaves, and even to sell slaves to buy fields he should also not do, for perhaps they will not succeed in their labor, or perhaps a legal challenge will arise against them. And even though we said that when it is necessary to sell one of them, the sale of slaves precedes because they are inferior to fields, this is when it is necessary to sell one of them; but to sell this and buy another thing one should not do even in such a case. There are those who permit even initially to sell slaves and buy fields. However, according to everyone, one may sell a portion of the fields in order to buy oxen for the labor of the remaining fields, for without the oxen necessary for the work of the fields, the fields are nothing, as the oxen are the essence and strength of the fields. So too, he is not permitted to sell from their fields in order to buy another field, and even to sell a poor field far from the city to buy a good field close by, for perhaps this one that he buys will not succeed. But with animals, houses, and slaves, it appears to me that when it seems right in his eyes to sell them and buy others, the authority is in his hand. Only with fields did the sages, of blessed memory, discourage it, because a field, even if not good, always stands and yields profit; but living creatures and houses, when the apotropus sees that they are not worth keeping and their expense is greater than the profit, he has the authority to sell them in any case, even to set aside the money. That which we forbade setting aside the money, this is when they produce income [it appears to me]. And see what I wrote in section 31.

One should deliberate whether that which the sages permitted to sell in order to feed them is specifically when they do not have money placed in an iska, but when they have money in an iska and the profit is not sufficient for their sustenance, they should take from the principal rather than sell these items; or perhaps it is better to sell some of these items than to take from the principal, for the sages only forbade selling these and setting aside the money to seek an iska with them, but when the money is already in an iska, we are not concerned for the prestige of their father's house in a situation where they lose a known profit. And so it appears primary, for if we say that even in such a case they should take from the principal, why did the sages of blessed memory need to command not to sell and set aside the money, since even when it is already in an iska, one removes the principal for their sustenance.

In Eretz Yisrael, where one is obligated to separate terumot and ma'asrot, the guardians must separate from their produce what they need to eat, for one does not feed them a forbidden thing. And even though terumah in this time is rabbinic according to the opinion of the Rambam, as written in Yoreh Deah siman 331, and we establish that if a minor eats nevelot, the beit din is not commanded to separate him, and all the more so regarding a rabbinic prohibition, as written in Orach Chaim siman 343; nevertheless, since the obligation is incumbent upon the father to train them even in a rabbinic mitzvah, and all the more so to separate them from a rabbinic prohibition as written there, the guardian stands in the place of the father. Furthermore, the guardian is like one who feeds with his own hands, and there is also in this the theft of the kohanim. However, they shall not tithe except for what they need to eat, but to leave in the storehouse they shall not tithe, and when the orphans grow up they shall tithe them themselves, and the tovah hana'ah will then be theirs to give to any kohen they desire. And even if it is necessary to sell the produce, he shall not tithe them, but rather sell them in their state of tevel and the buyer shall tithe them. And although it is forbidden to sell tevel, as the Rambam wrote in chapter 6 of Ma'aser, nevertheless for a guardian they permitted it, and he shall inform the buyers that it is tevel. And the reason for this, it is possible to say, is because the buyer will have the tovah hana'ah to give to any kohen he desires, he will pay more for the produce. And there are those who disagree on this and hold that it is forbidden for him to sell tevel, and the sages of blessed memory spoke only regarding what they need to eat, he shall tithe, and for the consumption of a year, but not for what they will need to eat in the following year, for he is only an agent for the needs of the hour [Ra'avad chapter 11 of Nachalot, and see Tosafot Shabbat 54b, s.v. "Hava"]. And know that in the Yerushalmi, chapter 1 of Terumot, halakhah 1, it is explained that regarding a minor orphan, the guardian is permitted to separate terumah as he wishes, but in the Shas, Gittin [52a], it is explained as I have written, and the primary view is like our Shas.

The guardians provide for the minors a lulav, a sukkah, tzitzit, a shofar, and a Sefer Torah to learn from. In our times, they must purchase printed books that are necessary for their studies and pay tuition for them, as well as tefillin when they reach the age of chinuch, and mezuzot, a Megillah, and similar items, for it is incumbent upon him to train them in the mitzvot, as he stands in the place of the father. The general rule of the matter: any mitzvah that has a fixed measure, whether it is from the Torah or from the rabbis, they provide for them. Even though their obligation is only from the perspective of chinuch, nevertheless, who will train them if not the guardian? However, they do not assess tzedakah upon them, even for the redemption of captives, because these mitzvot do not have a fixed measure. There is no distinction in this between a guardian appointed by the beit din or by the father of the orphans. Specifically without the permission of the beit din he may not give tzedakah, but with the permission of the beit din he may give [the Maggid Mishneh there]. However, if he assessed tzedakah upon them to bring them prestige so that they should acquire a good name, and they are of sufficient means for this, he has acted properly. In the Gemara [Bava Batra 8a] it implies explicitly that even in this case a beit din is required, and so it implies in Yoreh Deah siman 248, see there [and what the Maggid Mishneh wrote from the Tosefta, before us in Tosefta Terumot chapter 1 and Bava Batra chapter 8, it is regarding another matter, see there]. All this applies to tzedakah that does not have a fixed measure, but for fixed tzedakah such as the kuppah and the tamchui and similar things, the guardian must give as is written in Yoreh Deah there. The Rambam wrote that one who has become insane or who has become a deaf-mute, the beit din assesses tzedakah upon them if they are fit for it according to their status. In siman 163 it has been explained what the orphans are obligated to give for the needs of the city, see there.

It was taught in the Tosefta [ibid.]: One may not sell in a distant place to buy in a nearby place, nor sell poor quality to buy good quality; one may not litigate to obligate or to exonerate, to bring in or to take out for orphans, unless he received permission from beit din. Thus far its words. And it implies explicitly that everything which has been explained that the apotropus has no permission to do with the assets, if he did so with the permission of beit din, it is permitted; for since the beit din agreed to this, it is certainly for the benefit of the orphans [the Maggid Mishneh explains that this refers to all matters, and so it appears from the Tur and from our teacher, the Beit Yosef, and regarding tzedakah it is difficult from Bava Batra 8, and perhaps they will explain that Rabbah was an apotropus, and examine this].

If the apotropus needs to transfer money to others for the benefit of the orphans, the kinyan of ma'amad sheloshtan is not effective, for this is from the enactment of the sages as is written in siman 126, and it is like a law without a reason, and we have only found it regarding the owners themselves; and it is not within his power to remove the money of the orphans with such a kinyan even though it is only for their benefit. But if another transfers to the orphans in ma'amad sheloshtan and it is in the presence of the apotropus, they have acquired, for to bring money in for them, his hand is as their hand and his presence is as their presence.

The apotropoi are not permitted to release slaves to freedom, even if one takes from the slave money given to him by another on the condition that his master has no authority over it in order that he go out to freedom, and there is no violation here of the positive commandment "you shall work them forever" since they are taking money and they need the funds, such as if they have nothing to eat, because the world will think that they are treating the property of the orphans with contempt [Tosafot Gittin 38b]. However, they may sell them to others and take the money from them on the condition that they release him to freedom, and those others are the ones who manumit them. And if he is half-slave of the orphans and half-free man, it has been explained in Yoreh Deah siman 267. And all of this only deals with acting without the permission of the beit din, but if he took permission from the beit din, it is permitted to do whatever he wishes, for acting according to the beit din there is no suspicion [its source is from the Tosefta that we brought].

When the orphans grow up, he gives them the money of their testator and all their property, and he does not need to provide them with accounts from all the years of what he brought in and what he spent; rather, he says to them: "This is what you have from your property and your money." And the reason appears to me to be that if the beit din appointed him, they presumably chose a faithful and upright man, and if the father of the orphans appointed him, did he not trust him? And even though he does not need to provide an account to the orphans, nevertheless, he must calculate between himself and his own soul to be very precise and careful before their Father in Heaven, who is the Father of orphans and "Rides in the Arabot," which is the seventh firmament wherein dwell righteousness, justice, charity, the treasuries of life, the treasuries of peace, and the treasuries of blessing [Chagigah 12b], to bestow good upon those who perform righteousness, justice, and charity. And despite His great exaltedness, may He be blessed, He looks from there upon orphans and widows, as it is written: "Rides in the Arabot... Father of orphans and Judge of widows," etc. And darkness, cloud, and thick darkness surround this heaven [ibid.] to punish those who commit injustice, aside from his punishment in Gehinnom; and conversely, the greatness of his reward in Gan Eden.

And even though he does not need to provide an accounting, nevertheless, when a beit din appointed him, he must swear with a sacred object that he did not embezzle anything from them, in order to fulfill his obligation toward people and to quiet the hearts of the orphans so that they do not suspect him, and even though they do not have a certain claim against him. In what case does this apply? When a beit din appointed him. But if the father of the orphans appointed him, and similarly other testators when they appointed him, he does not swear on claims of doubt, for we fear that if we obligate him to swear, every person will refrain from being an apotropus. But when a beit din appointed him, there is no concern for this, for since a report goes out about him that he is held by the beit din to be trustworthy, he will not refrain from being an apotropus because of the oath. And even if the father of the orphans appointed him, if the orphans claim a certain claim against him and he denies it, he swears with a sacred object. And similarly, if one of the beit din claims a certain claim against him, he swears a Torah oath to contradict him, and if two testify, he must pay. And similarly, if anything belonging to the orphans was lost, he swears the oath of the guardians, for every oath of the guardians is on a doubt, as the owners do not know if he lost it through negligence or if it was lost through an accident. And if the apotropus has a share in the profit of the orphans or if he takes a wage, he swears on a claim of doubt even if the father of the orphans appointed him, for since he has a profit, he will not refrain from being an apotropus because of the oath.

And some say that when the father of the orphans appointed him, since he does not swear on a claim of doubt, he must provide an accounting, for through this he will be more precise when he knows that he must provide an accounting; for one thing is necessary for us to see that he will be very precise, either because of the oath or because of the accounting. Our teacher, the Rema, wrote that this is how one should practice, and we also place a herem stam upon anyone who took anything from the property of orphans. An apotropus who was appointed by the secular courts certainly must provide an accounting, for such is according to their laws. Regarding an oath, his law is like one appointed by the father of the orphans, for in a case of doubt we do not make him swear, and in a case of certainty we make him swear. And there is one who disagrees and holds that even when the beit din appointed him, he must provide an accounting, for in the Gemara there is a dispute regarding this, Rabbi and his father Rabban Shimon ben Gamliel [Gittin 52a], where Rabbi holds that he must provide an accounting and Rabban Shimon ben Gamliel holds that he does not need to. The Rif, the Rambam, and the Rosh hold that in the rule that the halacha is like Rabbi over his colleague, this is not against his father. But Rashi [Sanhedrin 23b] and the Rashbam [Bava Batra 170b] hold that it is even against his father [the Gra]. And it is possible that in this everyone agrees, that since he acts for free, he is no worse than a tzedakah collector who does not need to provide an accounting, as was written in Yoreh Deah siman 257. And if he takes a wage, he certainly must provide an accounting and also swear.

A beit din cannot appoint an apotropus to be trusted without an oath unless they cannot find a decent person who is willing to be an apotropus if they do not trust him without an oath; for then, by necessity, they appoint one who is decent for this and exempt him from an oath. Nevertheless, regarding a standard acceptance, the beit din speaks, for they do not speak explicitly against him and he will not be particular [it appears to me]. And when they administer an oath to an apotropus, an oath with a sacred object which is the oath of the Mishnah, they must claim against him at least two kesef and a perutah, and he must deny two kesef and admit to a perutah, according to the law of a Torah oath as was explained in siman 88 and as I wrote in siman 93 regarding all oaths of doubt. But if there was no claim or denial and admission of this measure, if they claim against him a certain claim, he swears a hesset oath as with all general claims, and they roll over upon him that he did not withhold anything of theirs in his hand.

Our teacher, the Rema, wrote: Reuven who says that he has in his hand money belonging to Shimon, and says that he commanded him to give it to his sons—if he wants to give to all his sons equally, they cannot administer an oath to him, for he is like an apotropus appointed by the father of orphans. But if he wants to give to some of them and not to all of them, then according to his words he is not an apotropus over them [to the one he does not give], and [these] can administer an oath to him that he did not withhold anything for himself. And if they are minors, the beit din appoints an apotropus for them and they administer an oath to him. Thus far his words. And it must be said that the matter is known that their father delivered money to him, for if not so, why should he swear? Does he not have a migo, and he is like one who returns a lost object, and he is no worse than what was written in siman 255 regarding one who came and said, "I saw that your father hid money," see there [Netivot HaMishpat]. And even though even when it is known he has a migo of "I returned it to them," however, regarding an apotropus we do not say a migo of "I returned it" [Shach]. And the reason is that if we exempt an apotropus with this claim, it would never be possible to obligate him in an oath. Furthermore, we do not say a migo to exempt from an oath except in the case of one who returns a lost object.

An apotropus, whether appointed by beit din or appointed by the father of the orphans, is exempt from theft and loss and liable for negligence, for his status is like a shomer chinam. And even though he is liable for negligence, one does not obligate him in an oath that he did not act with negligence as long as we do not know if the property of the orphans was lost; for although we administer an oath to him that he did not withhold anything of theirs, nevertheless we do not concern ourselves with loss where there is no claim. However, if he claims that it was stolen or lost and that he did not act with negligence in this, we administer an oath to him that he did not act with negligence [Sma]. And there are those who wrote that it is a legal doubt whether his status is like a shomer chinam or like a shomer sachar and is liable for theft and loss [ibid.]. And there is one who says that in a case where the father of the orphans appointed him, he is exempt even from negligence, and not by the letter of the law, but rather because if you obligate him, one will not find anyone who will agree to be an apotropus [ibid.]. And regarding a beit din, there is no such concern, as I wrote in section 35. And regarding one who takes a wage, it is obvious that his status is like a shomer sachar in every case.

An apotropus of orphans who purchased an ox for them and it had no teeth, and the shepherd placed it with the oxen and did not know that it was not eating and it died, it is not considered negligence on the part of the apotropus and he is exempt; and from whom they are compensated was explained in siman 232. And an apotropus who borrowed for the needs of orphans was explained in siman 110. Our teacher, the Rema, wrote: An apotropus who claimed in beit din what he should not have claimed, and through this the oath fell upon the one opposing the orphans, whereas had he claimed properly the oath would have reached the orphans, it is not called negligence, for who is to say that he would have sworn? And it is only called negligence if this person takes without an oath, whereas had he claimed properly the orphans would have taken without an oath. Thus far his words. And even though regarding one who swears and is exempt we do not find this reasoning of "who is to say that he would have sworn," nevertheless it is not a definite damage such that we should call him negligent [Netivot HaMishpat]. Therefore, even though the opponent swore and was exempt, he is not liable. And it appears that the same law applies if he had claimed properly the orphans would have taken without an oath, and through his claim they are required to swear, it is not called negligent even if they did not want to swear and they lost, for he can say to them: "If the truth is with you, why will you not swear? And if not, why should I pay you?" and similarly in all matters [it appears to me].

A beit din is not to compel a person to be an apotropus [the Maggid Mishneh, chapter 11 of Nachalot]. And even an apotropus who was appointed with his consent—whether a beit din appointed him or the father of the orphans appointed him—as long as he has not taken possession of the orphans' property and has not yet engaged in their needs, he may retract. Once he has taken possession of their property or begun to engage in their needs, he cannot retract. And even though a laborer may retract even in the middle of the day, this is due to the reason that "to Me the children of Israel are servants," and not servants to servants; however, an apotropus is a servant of Hashem, for he is performing a mitzvah [Ketzot HaChoshen]. And even if he takes a wage, he cannot retract, for the essence of the matter is a mitzvah and he is not a servant to servants [it appears to me]. And this is specifically when he remains in the city and wishes to retract, but if he goes from the city to another place for a duration of time or uproots his residence from here, he brings the property to the beit din and they appoint another, for there is no logic that we should ruin his situation for the sake of the business of the apotropus-ship. And even regarding the mitzvah of tzedakah there is a limit as to how much to give and squander of his money, all the more so regarding the business of apotropus-ship, for he is not obligated to lose because of this. And he is not obligated by reason of a neder, for regarding physical exertion we do not say that a neder is formed as long as he did not explicitly accept it as a neder. Furthermore, this is a "neder and its opening is with it," for we are witnesses that he did not vow with the intent that he would be unable to retract [the first explanation appears from the Maharik, root 133, and as mentioned above regarding the intent of the Shach, the beginning of siman 243].

Minor orphans who relied on their own initiative upon a homeowner and he exerted effort on their behalf, he has the status of an apotropus for all matters, and even if they relied upon a woman. And some say that we do not administer an oath to him, for it is a kal vachomer from one whom the father of the orphans appointed, where it is possible that he received benefit from their father and nevertheless we say that he shall not swear, for if so they would refrain from apotropus-ship as I wrote in section 35, all the more so in this case where he brought them close out of compassion. And some say that we do administer an oath to him, for if not so, there is concern for an unfit person who will draw the orphans to himself and consume their money; and as for the concern that because of this they will refrain from drawing close to them, let them refrain. And if he is a worthy person and his intention is for the sake of Heaven, he will not refrain because of this. And even though we were concerned there for this concern, nevertheless here it is impossible to be concerned for this because of the concern of an unfit person. And furthermore, it appears to me that even though the poskim wrote plainly that his status is like an apotropus, nevertheless to negotiate with their property to sell and to buy, he is not permitted without the permission of beit din even in matters that an apotropus is permitted to do, for who says that he knows how to conduct himself? And even though he is a worthy person, nevertheless perhaps in business he does not know, whereas beit din and the father of the orphans when they appointed him know that he is capable of this, but minors who relied on their own initiative, who knows him? Therefore, he shall not act without the permission of beit din. And when he has done something, beit din sees if he acted well, they uphold his actions, and if not, we void them. And even though in the Gemara we find [Gittin ibid.] regarding a woman whom orphans relied upon and she sold their ox and they upheld her actions, it can be said that they saw she acted properly. And even though we have no proof for these words, nevertheless so it appears from the side of logic. And the Rambam, of blessed memory, omitted entirely this law of orphans who relied upon a homeowner, and I do not know why, for behold it is an explicit Mishnah. And it appears to me that he holds that when they relied on their own initiative, beit din is obligated immediately to supervise who this man is, and perhaps he is not worthy and will eat their money; and when beit din sees that he is worthy for this, automatically his status is like one whom they appointed and he is literally like an apotropus. And his reasoning is logical, for behold unfit people are numerous, and how can we leave it to minors on their own? And if so, this is literally an apotropus and he did not need to mention it.

Our teacher, the Rema, wrote that a minor who relied on his mother, and the beit din saw fit to be stringent with her that she should provide an accounting or other reinforcements, it is permitted, for there is no concern that she will refrain and not act, as certainly the mother's mind is close to her son and she will not refrain because of this. Thus far his words. And regarding other relatives, certainly the beit din must also see according to the matter from their situation and the uprightness of their hearts, and when they see that there is reason to suspect them, they should remove them from them to others. And there was a case involving Leah, the widow of Reuven, who married Shimon and brought him the books of Reuven, and she had a son from Reuven and she stipulated with Shimon that he should sustain him and teach him, and she died, and the son claimed that she did not swear regarding her ketubah and he wants to take the books. And they ruled that if the value of the books is not more than the amount of his sustenance that Shimon spent on him, Shimon is exempt, for he is like an apotropus who spent on the orphans what they need [Mordechai ibid.]. And specifically where she stipulated that he sustain him in exchange for the books, but if she stipulated that he sustain him for free, certainly he must return the books to him.

Orphans who relied upon a homeowner and he fed them from his own, he has not placed his money on the horn of a deer, for since they have assets, presumably his intention was not to feed them for free. However, if he explicitly supported them as an act of gemilut chasadim, they are exempt from paying him; see Yoreh Deah siman 253. And the same law applies to one who said that he lent to orphans and clarifies that they spent this for their essential needs, they must pay him when he clarifies how much he spent. But if he lent to them to squander on that which is unnecessary, it is as if he loses it with his own hands, and they do not need to pay him when they grow up [Be'er HaGolah].

One who appointed an apotropus for his adult sons, they may say, "We do not need an apotropus," for when he dies the properties fall before them and he has no say in them, as I wrote in siman 250, unless there is a matter of the mitzvah to fulfill the words of the deceased, such as where he deposited it with a third party, as I wrote in siman 252. And a minor who reached adulthood, even if he was eating and drinking excessively and wasting his properties and going in an evil way, beit din does not withhold his money from him and they do not appoint an apotropus for him, unless his testator commanded that they should not give it to him and that he should not subject them to others unless he is fit and successful, or that they should not give it to him until a long time has passed. For since he had the power to appoint an apotropus during their minority, he also has this power to withhold the properties and not hand them over even when they reach adulthood until they are men fit for business. And it appears to me that also beit din, when they appointed an apotropus for a minor, when they see that even in his adulthood he is not fit for business, they have the authority to withhold it in the hand of the apotropus until he is fit for business. And even though when he is an adult beit din has no power to appoint an apotropus for him, nevertheless beit din are obligated to rebuke him and teach him to walk in a straight path and the ways of the righteous. And the shoteh and the deaf-mute, their law is like minors and an apotropus is appointed for them. And if when the father commanded not to give them their properties even when they reach adulthood until the time they are fit, and they subjected their properties during this time, their actions are nothing and their lien is like a broken shard [Beit Yosef]. And if the father appointed an apotropus for his son and his wife was pregnant and gave birth to another son after his death, and the first son died, the properties shall be in the hand of the apotropus for the sake of this newborn son, for it is an assessment of his intent that such was the will of the father since he knew she was pregnant [Sma].

An apotropus who died and his son produced his father's ledger in which it is written that he spent such and such on the sustenance of the orphans, and it was not written therein that they received from their properties, and the son of the apotropus claims from the orphans—one does not extract from the orphans based on this ledger even when the properties are still in the hand of the apotropus and the son is holding them, for one does not extract based on the ledger, as the properties remain in the hazakah of the orphans [Shach], and we say that perhaps he was paid and it was not erased from the ledger. However, while he is alive, he is believed to say that he spent such and such on them or lent them such and such since he is holding the properties, and he takes with an oath. But when the properties are in the hand of the orphans, even he does not take even with an oath [ibid.]. And if he commanded before his death in the presence of witnesses that such and such is due to him from the orphans, the son takes when the properties are still under his hand. And some say that he himself takes with an oath even when the properties are in the hand of the orphans, for he descended by the authority of the beit din [Netivot HaMishpat] and spent with authority. And the same applies when he was appointed by their father, since he descended with authority, and he swears and takes.