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Shabbat Parashat Va'eira| 5766

Pninat Mishpat

The Ability of a Single Guardian of a Charity Fund to Act Independently - Based on B’Shaarei Beit Hadin- vol. II, pp. 138-142
Case: One of the guardians of a charitable fund, which owns and rents out properties, rented out a property to his son without getting permission from the other guardians. [It appears from the dayanim’s comments, as found in the protocol, that this was done at a very cheap price.] Does such a rental stand or can it be nullified?
Ruling: In decisions of batei din, we follow the majority opinion. Regarding other group decisions, the situation is somewhat different. The Rama (Choshen Mishpat 18:1) says: “When a community chooses four or five arbiters, they do not follow the majority, for a majority is only in beit din.” This ruling is based on the gemara (Avoda Zara 72) that when one says that four people should evaluate the value of an object, all four must agree. The Maharit (I, 127) applies this concept to guardians as well. The Maharashdam (CM 303) says that if a father appoints before his death guardians for his orphans, they follow the majority. There are those who infer from there that if beit din appointed guardians, then one needs unanimous decisions unless it was stipulated otherwise. Therefore, in many appointments of guardianships, beit din includes a stipulation that a majority is enough.
 Even according to those poskim that a majority of guardians is sufficient, all of the guardians need to be involved in the decision and be able to express their thoughts. As the Beit Yosef (CM 13) says in the name of the Rashba, even by beit din, this is the case because we need to consider that if the missing person would have been there, he might have convinced the others that they were wrong.
 In this case, there was neither a majority nor were the other guardians informed of the deal prior to its finalization. Even with a proper process, it is forbidden for one in charge of tzedaka, who needs to sell an object of tzedaka, to sell it to himself, for there might be suspicion of misappropriation (Shulchan Aruch, Yoreh Deah 257:2). Only when the sale is done with beit din’s permission are there those who permit it. Israeli law has taken these concerns and forbidden guardians to sell the property, for which they are responsible, to close relatives. For the above reasons, we disqualify the rental.
Appeal: The son/renter complained that beit din did not have authority to take away the property he rented without he (the defendant) choosing their court as an arbiter.
Response: The beit din has exclusive jurisdiction under law to supervise the legal, proper running of the charitable fund. Since the transaction in question violated the rules of the fund’s guardianship, we have the authority to nullify it and protect the fund from the thievery that has been going on for years. The renter had the opportunity to present his claims and has failed to demonstrate that his actions have been acceptable.
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This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.

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