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 Shabbat Parashat Naso | 5768Pay for a GuardianP'ninat MishpatPay for a Guardian (based on Halacha Psuka, vol. 44 - a condensation of Piskei Din Rabbaniim vol. V, pp. 82-96) Case: A man died, leaving his property to his four sons. The will specifies that they would share the estate equally. Because of ambiguous language, different sons, the plaintiff (=pl) and the defendant (=def), disagree as to whether they share a store together or pl received all rights to the store. Def, who was appointed by his father to be the estate’s guardian, sold the store and divided the profits among the brothers. Pl demands to have all of the profits. Def counterclaims that he deserves a salary as guardian and thus demands money from pl. Ruling: According to beit din’s analysis of the will, pl is correct that the store and, presently, the profits from its sale belong to him. The question of def’s rights to be paid remains to be determined.
The mishna (Shvuot 45a) says that a guardian who is accused of misappropriating funds from the estate has to swear that he did not do so. However, the mishna in Gittin (52a) limits the matter. According to the Tanna Kama, if beit din appointed the guardian, he is exempt from swearing. Abba Shaul says that this is not so, but rather one who is appointed by the father is exempt. The reason to exempt a guardian is that we fear that the prospect of an oath discourages people from accepting the responsibility. Abba Shaul (whose opinion is halacha- CM 290:16) reasons that people are interested in being court-appointed guardians because it highlights their trustworthiness. The Noda B’Yehuda(II, CM 34) derives from this idea that such a guardian also does not need to get paid.
In our case, where the father appointed the guardian, we should thus say that he should get paid. However, it is apparent from the Meiri that we do not distinguish between the different types of guardians in this regard. He cites that anytime a guardian made a stipulation to receive profits from the estate, even if the deceased appointed him, he has to swear. This is because a guardian who profits would not be deterred from accepting the position due to an oath. However, if he did not stipulate, he would not receive profits, for if he did, the halacha would not have exempted him from swearing. However, the Meiri referred to a guardian for the property of minors, as people are willing to administer their affairs for free because it is a mitzva. For adults we assume that one would agree only for pay, even if it was not stipulated. This distinction is also implied by Rashi (Bava Metzia 39a).
Although in principle, def deserves pay for being a guardian, in practice he will not receive it because it is evident that he was mochel (relinquished rights to) the pay. After all, when he sold the store, he split the funds equally and did not demand compensation. Only after the conflict with pl arose (and after he was mochel)did def decide to demand pay. Therefore, pl receives all the proceeds of the sale and does not have to pay def.
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