Throughout all of Jewish civil law, there are laws that do not apply to certain classes of people. Three of them are very often grouped and discussed together:

(1) the minor, (for most halachic purposes, a male is a minor until he reaches the age of thirteen years and one day. A girl attains her majority upon reaching the age of twelve years and one day.) The halachah, in discussing the minor, presumes that a person who has attained his majority will also show signs of puberty. In many matters pertaining to those who attain their majority, they may still not be considered to be adults until the signs of puberty are present, and lacking such signs, they are not considered to be adults. The halachah regarding sales of real estate requires such signs. Should a question arise, Beth Din should be consulted. The halachah refuses to permit a body to be exhumed to prove that the person did not show signs of puberty and that thus the sale should be rescinded.

(2) the mentally deficient person, (In various lessons I have referred by various terms to a person who is not mentally able to comprehend the nature of the transaction or of his acts. After discussion with psychiatrists, psychologists, lawyers, and jurists, I have concluded that the term "mentally deficient" covers all such persons without need to elaborate.) and

(3) the deaf-mute.

The halachah considers their status to be unique in that they are all deemed not to have the mental capacity to participate in an act that requires mental capacity. The sale is a transaction in which the ownership of an item, whether real estate or personal property, is changed. In order to effect such ownership change, both parties, the seller and the buyer, must have the requisite intent to be able to effect such a change, and these three categories of persons are presumed not to have the requisite intent.

The halachah recognizes differences between the sale of real estate and the sale of personal property, the former usually involving real estate that has been in the family for many years. Usually, the minor spoken of is an orphan for whom no guardian has been appointed to protect his interests, nor is there a person who has volunteered to act as his guardian: he must protect himself. A person dealing with a minor should insist that Beth Din approve all such sales, especially real estate that he has inherited. When the halachah discusses sales and purchases of real estate of a minor, it also discusses loans made to a minor, since this is sometimes intertwined with real estate (as, for example, when a mortgage is placed on the minor's real estate or the loan is to be collected from the minor's real estate). Since the halachah discusses those disabilities that may make the sale void, it also discusses the sale by a person who is drunk and a sale held on certain holy days, and whether such circumstances also render the sale void.

We shall commence our discussion with a minor who has a guardian.

Before a father dies, he may appoint a guardian for his minor child to manage the property, real or personal, until the minor attains his majority.

Beth Din may appoint a guardian for the minor who will guard and manage his property. If the minor has a guardian, all of the acts of the minor regarding his property are a nullity, unless done with the consent of the guardian. If the minor acts without the guardian's consent, the guardian may later retroactively approve the act of the minor. If the guardian disapproves, the act of the minor is a nullity. The Rabbinic decrees enabling the minor to enter into certain sales transactions were enacted to enable the minor to sustain himself. The purpose of the guardian is to sustain the minor. Thus, once there is a guardian, there is no longer the necessity for the Rabbinic decree.

Once the minor attains his majority, his acts in the sales transaction are valid without the approval of the guardian appointed by the father or by Beth Din in the sale of personal property; it need not even be ascertained that the minor-turned-adult knows the significance of the sales transaction.

However, if the minor-turned- adult sells real estate, then his actions are not binding on him unless it can be shown that he understands the sales transaction.

There may be times when the minor cannot act without approval of the guardian even after attaining majority, as when the father who appointed the guardian placed restrictions on the transfer of the property he bequeathed to the heir until certain conditions were complied with, such as the heir reaching a certain age. The heir may sell the property to a buyer prior to that time, and the buyer will obtain ownership when the heir reaches the specified age, retroactively to the time of the sale.

The father can prevent his heir from selling the property at any time by setting up a life estate or trust in favor of the heir in the property that the father bequeathed. For example, the father states that the son, Reuven, shall receive the income from the property, and that after Reuven's death the property shall belong to Shimon. Reuven cannot sell the property.

Reuven can sell his right to receive the income from the property for the duration of Reuven's lifetime. That is, the purchaser from Reuven will not receive any income from the property after Reuven dies. Without the Rabbinic decree, the minor could find himself with property but nothing to eat. The decree was made so that the minor would be able to sell some of his personal property and obtain funds with which to live, or to purchase things with which to live. Since this is the underlying reason for the Rabbinic decree, there are certain authorities that hold that the sale transaction involving a minor is valid only to the extent that it is necessary for the support of the minor and is not valid insofar as it exceeds that which is necessary to support him. Most authorities disagree with this view on the grounds that no one will deal with a minor because they cannot know if the minor has sold property in excess of the amount necessary to support himself. Another reason given for the Rabbis permitting certain transactions by a minor is that he should not sit around idle.

In these lessons, when the minor or his guardian has the right to rescind the sale, it is not reciprocal to the other party. Thus, if the minor (or deaf-mute or mentally deficient person) desires the sale to remain valid and his guardian or family consents to the transaction, the other party may not rescind the transaction.

The subject matter of this lesson is more fully presented in Volume VII Chapters 235 of "A Restatement of Rabbinic Civil Law" by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il

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