Translation:Shulchan Aruch/Choshen Mishpat/285

Paragraph 1- If a captive was captured and we heard that he died, and the inheritors went to down to the inheritance and divided it between them, we would not remove the properties from them. The same would be true where one fled because of danger. If one left willingly, however, and they heard he died and the inheritors went down to his property and divided it, we would remove the properties from them until they can bring proof that their relative died.

Paragraph 2- If one was taken captive or fled because of fear for his life, the court is obligated to deal with his properties. What would they do? All of his movable properties would be deposited by the court with a reliable person. We would have relatives who are eligible to inherit go down to the real property to work the property and deal with it until they find out he died or he returns. If there were many inheritors, and some work the ground while others do not, we would place the properties with the ones that work the land. When the captive or one who fled returns, the relatives who went down would appraise what they did and what they consumed using the custom of sharecroppers in that location. There are those who say they only appraise like a sharecropper for appreciation. With respect to fruits, however, they would take everything. If they heard that he died before they went down, and he later returned, they would receive none of the appreciation. Rather, whatever they consumed they consumed, and whatever they spent, they spent. Why would they not always appoint a guardian, whether it is movable items or real property, until the owner returns or we know for sure he died? Because a court is not required to appoint a guardian for sane adults. If, however, there is someone here who wants to be a guardian for the sake of the captive, we would appoint him, and there is nothing greater we can do for him. An inheritor may, however object to the appointment of a guardian. There are those who say an inheritor cannot object. A fool has the status of a minor and we would appoint a guardian for him.

Paragraph 3- If one was taken captive or one in danger fled and he left standing grain to be reaped, grapes to be harvested or olives ready to be picked, the court would go down to his properties, appoint a guardian, and reap, harvest, pick and sell the fruits, and leave their money with other movable items in court. We would then have a relative go down the property. If we were to have the relative go down first we are concerned he may cut these fruits, which are like they are detached, and consume them. The same is true with courtyards and inns. In the case of storefronts that are intended to be rented out and do not require work or burden, and nobody would give them as a sharecropper arrangements, the court would not have a relative go down because he will collect the money and consume. Rather, what would the court do? They would appoint a treasurer, and the money will be placed in court until the relative can bring proof the owner died or until the owner returns and takes what is his. We would never have the relative go down, other than to gardens, vineyards and anything similar, where they will act like sharecroppers, in order not to cause a loss to the property, making the land desolate and ruined.

Paragraph 4- If one left willingly, and left behind properties, and it is unknown where he went and we don’t know what happened to him, we would not have a relative go down for his properties. If he went down, we would remove him. The court is not required to deal with the properties and appoint a guardian, whether it is real property or movable items, because he left willingly and left behind properties. What would be the law with respect to these properties? We would place the movable items with whomever has control over them now until the owner returns and claims them or he dies, and then the inheritors will claim them. With respect to the real property, if he left them with a neighbor, we would not take payment for them. If he left a field or vineyard with a sharecropper, we would leave them as he left them until the owner returns. If he left a field or vineyard empty, they would remain empty because he willingly forfeited his money and we have no obligation to return an intentionally misplaced item. If properties he did not know about later fell to him, however, the law is the same as property of a captive. Similarly, if he went to a place that is not dangerous, with the intention to return, but he did not return, it is as if he went unwillingly.

Paragraph 5- If they heard that he died, the court would remove all the movable items and give them to someone whom possessors say is trustworthy. It is only as a relative we would not give them movable items. They can, however, be a guardian like anyone else. See later 209:2 and later in this Siman in Paragraph 8. We would have the relative go down to the fields and vineyards like a sharecropper, until he brings a clear proof that the owner died or until the owner returns.

Paragraph 6- When the court has a relative go down to the property of a captive, one who fled or one who left willingly whom they heard had died, they would not have a minor go down because he may ruin the properties. We do not send a relative down to the properties of a minor because the relative may claim this was the portion that he received from his inheritance. We would not even have a relative of a relative go down. How so? If there were two brothers, and one was an adult and one was a minor, and the minor was captured or fled, we would not have the adult go down to his field because the minor is unable to object and this brother may take possession and after a few years say this was his portion of the inheritance. Even this minor captive’s brother’s son would not go down because he may say that he inherited this portion via his father.

Paragraph 7- We would never have a relative go down to a minor’s property, even a relative via the minor’s mother’s brother who are ineligible to inherit. This is an extra level of stringency. Even if they have a division-document between them, whether of houses or fields, the relative would not go down. Even if the relative said to write a sharecropper-document, he would not go down because they may lose the documents, a long time will pass and he will make a claim and say this is his share of inheritance that he received directly or via one who bequeathed to him. All of the foregoing that we do not have a relative go down to the minor’s property is where they are not supported by the same table and have already divided. If the brothers had not yet divided, however, and they are supported by one table, we would have a relative go down to the minor’s property. There are those who say further that this that we do not have a relative go down to a minor’s property is where he would consume the fruits. To be a mere guardian, however, where he would receive no benefit, it would be permitted. Similarly, if the properties were not the minor’s inheritance portion, a relative is permitted to go down.

Paragraph 8- This that we do not allow a relative to go down to a minor’s property is only with respect to real property. They can, however, appoint a relative over a minor’s money. It is better to use a relative than a non-relative. Thus, if there is a relative and a non-relative, and they are both equally trustworthy, the relative would take precedence and they would appoint him. If the relative was not trustworthy, however, they would appoint the trustworthy non-relative. Similarly, if a minor has money from his mother’s father or another source, and his father was alive, we would not give the properties to the father because we do not have a relative go down to a minor’s properties. Rather, the court would appoint a guardian. If there are movable items, and the father is fit to be a guardian on them, we would give them to him. There are those who say that a court is not required to investigate in the case of minors who have a father, unless the father was established as one who does not go in the good path.

Paragraph 9- An incident occurred where a woman had three daughters, and the woman and one daughter was taken captive, and the second daughter died, survived by a minor son. The Rabbis said that we would not have the remaining daughter go down to the properties because the mother may have died, and 1/3 of the properties belong to the captive daughter, and we do not have a relative go down to the properties of minor. Similarly, we would not have this minor son go down to the properties because the mother may still be alive and we do not have a minor go down to the properties of a captive. What would they do? Because they need to appoint a guardian on the ½ that belongs to the minor, they would appoint a guardian on all of the mother’s properties. Later, they heard the mother died. The Rabbis said the remaining daughter can go to down to 1/3 of the properties, which is her inheritance, and the minor can do go down to 1/3 because that is his portion of the mother’s properties. We would appoint a guardian on the third of the captive daughter because of the minor’s portion since the captive daughter may also have died and this minor has the right to half of the 1/3. The same applies to anything similar.

Paragraph 10- If a captive rebelled and married a gentile, and she has real property and movable items, we would treat her properties as we would the properties of a captive that did not rebel.