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Shabbat Parashat Ki Tissa| 5766

Pninat Mishpat



Jurisdiction of Guardian for Teenagers - Based on Piskei Din Rabbaniim - vol. III, pp. 154-160
 
Case: A man died, leaving much of his property to his son from his second wife. His will states that his daughters from his first wife will serve as guardians (apputropus) over his son. The son was 9 at the time and is now 14. The widow has sued the guardians over a matter of support from the estate, and the matter is before beit din. However, beit din must decide if the guardians still have authority to represent the orphan in beit din.
 
Ruling: Beit din should appoint a guardian for an orphan until he “grows up” (Rambam, Nachalot 10:5), which always refers to the time of becoming a bar/bat mitzva. When a father appoints a guardian for his “grown” son, the son can generally refuse to accept their authority (Rama, Choshen Mishpat 290:26). The implication is that until the orphan objects, the guardianship is valid. However, the Rivash (468) says that this is only when the father explicitly stipulates that the guardianship should continue after bar mitzva. Otherwise, we assume that it was intended to cease at bar mitzva.
There is a leniency that an orphan’s money can be lent so that they receive what would otherwise be rabbinically forbidden interest. In this regard, his status as an orphan continues after bar mitzva until he is capable of handling his own money (Terumat Hadeshen 300). However, the language of the poskim indicates that this is an exceptional halacha, and in regard to other areas, an adolescent does not have the status of an orphan. In the context of beit din’s obligation to find a guardian for an orphan, we find indications that it applies to an adolescent who is too young to manage his affairs reasonably. That is because it is likely that they will be able to find someone who is willing to help despite his official status as an adult (Shulchan Aruch, CM 285:2). However, that is only when the orphan agrees that someone act as his guardian. In general, one cannot extrapolate from one area of halacha to another concerning a young adult orphan’s status.
There is some logic that, given that in secular law, a 13 year old is not considered an adult, the father intended that the guardianship would continue beyond. However, since the matter is not clear and since the son is capable of standing before court when they hear the case, this is what should be done. There is an additional factor. When a guardian represents an orphan in court, if he wins the case, the ruling is valid. But if the guardian loses the case, the ruling is not binding (Magid Mishneh on Nachalot 11:7). Therefore, it is unfair to have the widow adjudicate in a situation that she can only lose and not win. The only time we allow a claim against an orphan represented by a guardian is when the obligation is clear, in which case beit din arranges the payment (Choshen Mishpat 108 & 110).
 Based on the aforementioned, the guardians cannot represent their brother, the orphan, in court.
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Dedication

This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.
Hemdat Yamim is also dedicated by Les & Ethel Sutker of Chicago, Illinois
 in loving memory of Max and Mary Sutker and Louis and Lillian Klein,z”l.
May their memory be a blessing!

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