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Shabbat Parashat Ki Tisa 5776

Pninat Mishpat: Responsibility of a Guardian

(based on Shut Noda BYehuda II, Choshen Mishpat 34)

Case: Beit din appointed Reuven as a guardian to assist orphans, with instructions to do his best with the funds they inherited, including securing payment of debts to the deceased. Reuven worked hard to receive payment from debtors, and then lent out the money to reliable people with liens on real estate, loan contracts, and collateral. However, he lent out 25 gold coins to Shimon just based on a loan contract because he considered Shimon particularly reliable and G-d-fearing, and Reuven had his own successful business dealings with Shimon. Reuven reaped some profits on behalf of the orphans from Shimon but left the principle in his hands. One day, Shimon went on a mission of mitzva, along with significant cash to buy merchandise for subsequent sale, and he has not been heard from since then. It is unclear whether he died or was captured by bandits, etc. The orphans’ relatives are now suing Reuven for investing the money without proper collateral. Reuven responds that he did not want the orphans’ money “sitting idly” and that he had acted with their money as he had with his own. They responded that he should have been more careful with orphans’ money.


Ruling: If beit din explicitly said that Reuven can do as he sees fit with the orphan’s money, then even if the regular halacha is that a guardian needs to take very safe collateral (see Shulchan Aruch, Choshen Mishpat 290:8), Reuven is still exempt. If there was not explicit broad authority, then Reuven would be obligated. Reuven cannot exempt himself based on the Ramban’s minority opinion that a guardian is exempt from payment even if he was negligent. That is because lending money without proper collateral is not called negligence but active damage since he actually gave money to someone to whom he should not have. This may depend on the different opinions (Rama, CM 301:1) whether a watchman who gave to another watchman is viewed as negligence or is worse than that. It is hard to understand, though, how to invoke the Ramban, who did not say his opinion in the case of a beit din-appointed guardian. There is no halachic logic to distinguish between individual guardians based on the likelihood that they would refrain from the appointment if they are financially liable.

However, if we obligate Reuven, it should be only in the difference between the net results in comparison to not investing the money at all (because we do not know that he would have found someone with guarantees who would have produced profits). Therefore, we should reduce from the payments, the profits already received. We shouldn’t look at the final reinvestment as the time of damage because it is not clear that he would have succeeded in extracting all the payment at that time (see Shulchan Aruch, 290:20).

The guardian certainly does not have a right to demand a salary since the matter was not discussed, and the value of reputation of being beit din appointed is sufficient.

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