Lesson # 246 •Guardians (Part III) Duties and powers of the guardian The guardian has the same responsibility for the assets of the minor as does a gratuitous bailee. That is, he is not liable if any or all of the assets were stolen or lost, or lost or destroyed by force majeure or for reasons not considered his negligence. An example given in the codes of not being negligent is that the guardian purchased an ox and sent the ox out to graze with the other oxen and he did not notice that the ox had no teeth and could not eat, and the ox died of starvation. The guardian is liable if there were losses of some or all of the assets due to his negligence. There is an opinion that if the guardian was appointed by the father he is not liable even for losses caused by his negligence. Otherwise, it may be difficult for the father to find a guardian. The guardian must keep accurate books and records of the assets of the minor, including expenses, income, and other matters that are usually kept by persons managing the property of others. The guardian may do anything if he first obtains the permission of Beth Din. Absent such permission, what may he do? The guardian must manage the property of the minor as he would manage his own property. (An example given in the Talmud and continued in the codes: If a guardian had some beer belonging to the minor and if he would keep it until he can sell it where he is, the beer might deteriorate, or if he goes to the market to obtain the best price, there is the danger of the beer being lost on the way. He should do with the beer that which he would do with his own beer.) There is authority that the guardian must obtain the advice of Beth Din in all events if there may be some danger in his conduct of selling or investing the assets of the minor. The guardian manages all property that has been transferred to him, pays all of the expenses of the property, and receives all of the income; he may construct things on the real estate and he may raze structures, hire employees, and do anything he deems to be in the best interest of the minor. He provides him with the necessities of life for food, clothing, and shelter in conformity with the amount left by Yaakov for the minor and with the amount of money he earns on their behalf, and what is fitting for him, neither too miserly nor overly generous. The guardian may not lend funds belonging to the minors to third parties. If the borrower does not have the money to return, the guardian is held liable to the minors for such amount. The guardian may sell assets of the estate to provide food for the minor, but he may not sell assets to let the money lie without being invested. While the halacha provides for the order of sale of the assets, it concludes that the guardian should use his judgment as to what is best for the minor. David, the guardian, may not litigate as a plaintiff on behalf of the minor in order to attempt to acquire a right for the minor, when it may turn out that he will lose the lawsuit and the minor will lose such right; the guardian should wait until the minor comes of age and litigates on his own behalf. A party who has a claim against a minor should not sue because if he does and the guardian defends the lawsuit and wins, the judgment in favor of the minor is binding on the other party; if the guardian loses the lawsuit, the minor can have the judgment against him set aside. The guardian may be a witness in a lawsuit in which the moneys of the minor are involved since the guardian has no interest in the outcome of the lawsuit. The question is raised that if the guardian litigates and loses he may be liable to make good the losses when he renders his final accounting to the minor when he becomes of age. The guardian is not liable in a situation where it was the father who appointed the guardian and he does not have to account. The guardian may set aside tithes from the property of the minor in order to make the food fit for consumption. However, he may not set aside tithes so that they can be sold as tithed produce and he cannot set aside tithes so that the produce will be ready when the minor reaches his majority. The minor will be able to tithe the produce when he attains his majority and will benefit by giving the tithes to the kohen or Levite of his choice. The guardian may purchase for the minor religious objects so that the minor can train to fulfill his religious obligations. The minor is not obligated to fulfill the religious obligations. There is, however, an obligation on the guardian to fulfill the role of the parent to train the minor in the fulfillment of Torah commandments. He may purchase textbooks and pay tuition for the minor. The reason that the guardian is permitted to purchase these objects is that they have a fixed cost, depending upon where they are purchased. Without the permission of Beth Din the guardian may not make charitable contributions nor be taxed to make a charitable contribution on behalf of the minor, even for the redemption of captives, since there is never a fixed amount of charity that a person should give. However, if it is a fixed sum and the minor's reputation will be enhanced by the giving of such charity on his behalf, it may be done by the guardian with the permission of Beth Din. As stated by Rambam, Gifts to the Poor 8:10 - The ransoming of captives has precedence over the feeding and clothing of the poor. Indeed there is no religious duty more meritorious than the ransoming of captives, for not only is the captive included in the generality of the hungry, the thirsty, and the naked, but his very life is in jeopardy. He who turns his eyes away from ransoming him, transgresses the commandments Thou shalt not harden thy heart, nor shut thy hand (D'varim 15:7), Neither shalt thou stand idly by the blood of thy neighbor (Vayikra 19:16), and He shall not rule with rigor over him in thy sight (Vayikra 25:53). Moreover, he nullifies the commandments Thou shalt surely open thy hand unto him (D'varim 15:18), That thy brother may live with thee (Vayikra 25:36), Thou shalt love thy neighbor as thyself (Vayikra 19:18), Deliver them that are drawn unto death (Mishlei 24:11), and many other admonitions like these. To sum up, there is no religious duty greater than the ransoming of captives. The subject matter of this lesson is more fully discussed in volume VIII chapters 290 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat
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