Translation:Shulchan Aruch/Choshen Mishpat/110
Paragraph 1- We already explained in Siman 108 that we would not collect from minor inheritors who have not reached the age of 13, even if there is a document against them and even if the document contained a believability clause or had every condition in the world, if it is not one of the three cases mentioned there. We would not collect with the document unless there is a document with interest that their father borrowed from a gentile who agreed to be judged with Jewish law and not make a claim against the orphans until they became adults, but did not agree not to accept the interest. Similarly, if the court sees that there is some benefit to the orphans to collect when they are minors, such as where the creditor wants to waive some of the debt in order to collect now, the court has permission to collect with it. Similarly, the court could collect a kesubah debt, as was is explained in Tur Even Haezer. If there are minor and adult inheritors, the lender may collect the adults’ share from them. In order for the creditor to be able to collect the adults’ share, the court must appoint a guardian for the minor to divide with the adults, and they will collect the adults’ share from them. This that we do not assist for minor-properties is where it definitely belongs to the minors. If, however, it is unclear whether the borrower was still alive, they may collect from those properties, even if they heard that he died.
Paragraph 2- The reason we do not collect from minors is because we are concerned their father gave bundles of money to the lender. Thus, if the lender seizes property from the minors in a way where he could claim that he purchased the item, his seizure would work, even if it took place after their father had died, because it is known to the lender that he did not collect from their father.
Paragraph 3- We would act with respect to the co-signer’s properties, even if the orphans are minors.
Paragraph 4- If the deceased instructed the minors and said give a field or maneh to so and so, we would act with respect to those properties once we have appointed a guardian for the orphans to advocate on their behalf. Similarly, if he said give this maneh or this field to so and so, we would act with respect to those properties once we have appointed a guardian for the minors. According to the Rambam, in such a case we would not need to appoint a guardian. If an adult inheritor gave the inherited property to a minor and a loan document was produced against the deceased, we would allow the creditor go down to the those properties.
Paragraph 5- If minor orphans were discovered with real property that did not belong to them and the plaintiff claims it was stolen by the deceased, we would act on that property and if it is in fact stolen we would return it to its owner. According to the Rambam we would not appoint a guardian for the orphans to claim and litigate. Similarly, if a minor took possession of slaves or went down into another’s field and took possession of it, we would not say to wait until he becomes an adult. Rather, we remove it from him immediately. If the minor has witnesses, he may bring his witnesses. This is only where he did not have a presumption on this land from his ancestors. If, however, he had a presumption, we would not remove the land until he becomes an adult. Thus, one who claims that he has damage claims against minor orphans, we would not appoint a guardian from them to litigate the case while they are still minors unless it was well-known that they damaged the plaintiff with their hands. Any case where there is some kind of doubt we would wait until the minors become adults. There are those that say we would always appoint a guardian, whether there is substance to the claim or not, because the guardian may compromise with the claimants for the benefit of the orphans.
Paragraph 6- If real property was presumed to belong to minors and an individual came and claimed he bought it from the deceased and he has witnesses that he took possession and consumed the years required for a presumption while the deceased was still alive, we would not remove the property from the minors until they become adults because we do not accept testimony outside the presence of the litigant. If, however, he produced a document that he purchased the land, we would verify the document and remove the property from the orphans’ possession once we have appointed a guardian for them.
Paragraph 7- If the deceased confessed in his handwriting that moveable items in his possession were from a business arrangement with so and so or were a deposit from so and so, we would remove the items from the minors. See above at the end of Siman 107. Similar, if the deceased stole, the minors would be required to pay, whether the deceased consumed the item or not, whether the original owners had given up or not and whether the deceased left real property or moveable items.
Paragraph 8- If the court or the orphans’ guardian borrowed for the orphans, we would act on their properties, sell them without an announcement and collect from their average properties just as we would for any other debtor. Similarly, if the court sold property with the orphans’ guarantee and the property was collected from the buyer, they can collect without an announcement and the rule would be the same as it is for any other debtor. If, however, the orphans themselves borrowed without a guardian, we would not act on their properties until they become adults and we would not appoint a guardian to accept the testimony.
Paragraph 9- In any situation where we said that we appoint a guardian to act on the orphans’ properties, we would accept witnesses in the presence of the guardian because the guardian is considered a litigant. Similarly, we would accept witnesses on the deceased’s will in the presence of the guardian. There are those that say that the reason we accept such testimony is because we can accept testimony on a clear matter without any suspicion, such as a will, even if not in the presence of the litigant. Thus, it is permitted to accept witnesses on the will in the presence of the minor. The same applies to any matter where it is clear the minor is liable. There are those that write that we would not accept such testimony in front of the guardian. In what case can someone leave minor orphans and have his will complied with? Where he gives over his words to court or witnesses write the will in a document and sign it in his lifetime or if the deceased himself writes his will in a handwriting that the court recognizes. See earlier 108:3-4.
Paragraph 10- We would not need to appoint a guardian to collect for the woman’s kesubah.
Paragraph 11- When we said to appoint guardians we only said this to make the court’s job easier. If, however, the court prefers not to appoint a guardian and they will advocate for the orphans themselves, there is no better guardian than the court. The court has the power to compromise on behalf of the orphans if it appears beneficial to the orphans.