1) HOW MANY DAYS IS THE APPRAISAL OF THE PROPERTY OF ORPHANS?
QUESTION: The Beraisa quotes Rebbi Meir who says that the appraisal process of the property of orphans is done for a period of thirty days. Rebbi Chiya bar Avin explains that Rebbi Meir maintains that the appraisal is done for sixty days. He explains that this does not contradict the Beraisa. When the appraisal is done on consecutive days, it is done for thirty days, but when it is done only on Mondays and Thursdays, it must be done for sixty days.
RASHI (DH Kulfei) explains that Rebbi Chiya bar Avin's statement -- that thirty days suffice when the appraisal process is done on consecutive days -- was made with regard to both the appraisal for property of orphans and the appraisal for property of Hekdesh.
Why does Rashi say that Rebbi Chiya bar Avin equates the appraisal of Hekdesh with that of orphans? The Mishnah (21b) clearly states that the appraisal for property of orphans is done for thirty [consecutive] days, and that the appraisal for Hekdesh is done for sixty days. Obviously, they are not the same.
ANSWER: The Acharonim answer that Rashi means that Rebbi Chiya equates the two only with regard to doing the appraisal for consecutive days. Rashi is saying that Hekdesh also requires consecutive days, but it requires sixty days, and not thirty. No appraisal is made for Hekdesh on Mondays and Thursdays alone. (VILNA GA'ON, LECHEM MISHNEH in Hilchos Erchin 3:20, RAV BETZALEL RENSBURG, TIFERES L'MOSHE)
The KESEF MISHNEH indeed infers such a law from the words of the RAMBAM (Hilchos Erchin 3:20).
The CHOK NASAN explains the logical basis for this ruling. Appraisals for property of Hekdesh are not made on Mondays and Thursdays alone because such appraisals require a longer period of time, and a longer period would pose a greater risk of loss to Hekdesh.
2) "MISHUM CHINA"
OPINIONS: Mereimar rules that a divorced woman's Kesuvah may be collected from the orphans of her deceased ex-husband. Even though she should not be legally entitled to collect from their property, Mereimar permits it "because of grace" -- "Mishum China." What, and for whom, is this "grace"?
(a) RASHI here (DH Mishum China) and in Kesuvos (84a) explains that the money of the orphans is given to the divorced woman so that women in general will want to marry. If there would be grounds for a woman to fear that she will not receive her full Kesuvah if, G-d forbid, anything happens to the marriage, then she might refrain from marrying. By assuring every divorced woman that she gets her Kesuvah even from the property of the orphans, women in general will not be discouraged from marrying.
(b) The ARUCH (Erech Chen, as printed in the margin of Kesuvos 84a) and RABEINU CHANANEL (cited by TOSFOS to Kesuvos 84a, DH l'Kesuvas) explain that the Chachamim enacted that the Kesuvah be given to every divorced or widowed woman even if the money must be taken from the orphans, in order to ensure that women fulfill their nuptial responsibilities faithfully and thereby arouse the affection of their husbands and maintain Shalom Bayis.
(c) The RAMBAM (Hilchos Malveh v'Loveh 12:3) explains that the Chachamim enacted that the Kesuvah be given to the woman even from the property of the orphans in order to provide her with a source of livelihood so that men will be attracted to her and she will be able to remarry more easily.
3) COLLECTING A DEBT FROM ORPHANS
QUESTION: The Gemara relates that until Rav Nachman heard the teaching of Rav Huna, he would not collect debts of a deceased man from the property of the man's minor heirs. Rav Papa said that the reason for this is that "repayment of a debt is a Mitzvah, and [minor] orphans are not obligated in Mitzvos." Rav Huna brei d'Rav Yehoshua said that the reason why he did not collect from the heirs was the concern that the father might have given, in his lifetime, bundles of money to the lender, and thus the debt already has been repaid. The Gemara asks what the difference is between these two reasons, and it answers that the difference is in a case in which the father admitted just before he died that he still owed money, or in a case in which he was excommunicated for not paying and he died in Niduy (had he paid, Beis Din would have rescinded the Niduy).
The Gemara seems to ignore a very simple difference between the two reasons: whether or not the debt may be collected from the orphans when they become adults. According to Rav Papa's reason, the orphans must pay the debt when they reach adulthood, because they become obligated in Mitzvos at that time and must fulfill the Mitzvah to pay back the debt. According to Rav Huna brei d'Rav Yehoshua, even when the orphans reach adulthood, the concern that the father may have paid his debt before he died remains. Why does the Gemara not suggest this simple difference?
ANSWER: Both Rav Papa and Rav Huna brei d'Rav Yehoshua agree that when the orphans reach adulthood, they must pay their father's debt. This is clear from a number of Mishnayos (see TOSFOS to Kesuvos 87a, DH mi'Nichsei). The only reason why Rav Huna brei d'Rav Yehoshua says that we suspect that the father may have paid the debt is that the orphaned children do not know how to defend themselves from fraudulent claims. Once they are grown, however, they will investigate and determine whether their father paid the debt before his death with some form of security (or whether he had a receipt of repayment, according to Rava later (22b)). (See RAMBAM, Hilchos Malveh v'Loveh 12:2.)
4) THE DIFFERENCE BETWEEN RAVA AND RAV HUNA BREI D'RAV YEHOSHUA
QUESTION: Rav Papa (22a) maintains that the reason why Beis Din does not collect the debt owed by a deceased man from the property of the man's minor heirs is that "repayment of a debt is a Mitzvah, and [minor] orphans are not obligated in Mitzvos." Rav Huna brei d'Rav Yehoshua maintains that the reason is the concern that the father might have given, in his lifetime, bundles of money to the lender, and thus the debt already has been repaid.
Rava argues and says that the reason why Beis Din does not collect a woman's Kesuvah or a debt from the children of a deceased man is that the father may have had a receipt in his possession saying that he paid.
Rava's reason seems to be the same reason that Rav Huna brei d'Rav Yehoshua gives. Rav Huna says that there is a concern that the father may have given the creditor money as security for the debt before his death. Rav Huna and Rava essentially give the same reason: Beis Din does not collect a debt from orphans because of the concern that the father already paid back the debt. What is the difference between them?
ANSWER: TOSFOS (DH Rava) says that the difference between the reasons of Rava and Rav Huna brei d'Rav Yehoshua is in a case in which the father clearly stated before his death that he has no documents other than the ones that he shows us (and there is no receipt for the debt among those documents). According to Rava, Beis Din may collect the debt from the property of the orphans. According to Rav Huna brei d'Rav Yehoshua, Beis Din still must suspect that the father gave money to the creditor.
5) HALACHAH: COLLECTING DEBTS FROM MINOR HEIRS
QUESTION: The Amora'im disagree about whether Beis Din may collect debts from the property of orphans (Rav Nachman, end of 22a) or not (Rav Asi, Rav Ashi, Rava, and others).
What is the Halachah?
ANSWER: The SHULCHAN ARUCH (CM 108:1, 110:1) rules that, under normal circumstances, Beis Din does not collect the father's debt from his minor heirs. There are, however, six different situations in which Beis Din does collect from the orphans.
1. The first situation is when the father admitted, before he died, that he owed this debt (CM 108:1).
2. The second situation is when one of the terms of the loan was that the money must be paid back by a certain time, and that time has not yet arrived. We assume that the father did not pay back the debt before the time of repayment arrived (CM 108:1), because there is a Chazakah that a person does not pay back a loan before it is due.
3. The third situation is when the father was excommunicated (with Niduy) by Beis Din for not paying back his debt, and he died while excommunicated (CM 108:1). Had he paid back his debt, Beis Din would have rescinded the Niduy.
4. The fourth situation is when interest is being charged against the debt (CM 110:1).
5. The fifth situation is when the debt is a Kesuvah of the deceased man's widowed wife (CM 110:1).
The Amora'im (22a) disagree about why Beis Din collects a woman's Kesuvah from the orphans. Ravina in the name of Rebbi Yochanan says that Beis Din collects a woman's Kesuvah from the orphans because she is causing a loss to their estate until she collects the Kesuvah, since they must support her until she collects the Kesuvah. Ameimar says that it is because of "grace" ("Chen"; see above, Insight #2). The difference between the two reasons is the case of a divorcee (as opposed to a widow), who is not supported by the orphans of her ex-husband (and thus is not causing them a loss). Another difference between the two reasons is a case in which the Kesuvah is worth more than the total value of the orphans' estate. In such a case, the widow is not causing them a loss by having them support her instead of giving her the Kesuvah.
What is the Halachah in the case of an unpaid Kesuvah of a deceased man's divorced wife?
The RAMBAM (Hilchos Malveh v'Loveh 12:3-4) cites both opinions. The RA'AVAD there asserts that the reason why a widow collects from orphans is "Chen," and, therefore, in the two cases mentioned above, she may collect her Kesuvah from the orphans. It appears that the Shulchan Aruch (EH 104:3) rules like the Ra'avad.
6. The sixth situation is when the orphans will benefit by paying back their father's debt now. For example, the creditor will waive part of the debt if they back pay now (REMA CM 110:1).
Whenever Beis Din collects from the property of orphans, they appoint a custodian (Apotropos) to manage the financial affairs of the estate and to ensure that the property is sold for a fair value to pay off the debt of their father. (No custodian is appointed in a case in which witnesses testify that the land in the orphans' possession is stolen property. According to the Rambam, even in such a case Beis Din appoints a custodian.) The only case in which Beis Din does not appoint a custodian is when the father admitted before his death that he owed "this field" to the creditor.