[Avodah] Geirut

[Chana Luntz]

> I wrote:
> > In what cases do you believe an apotropos makes decisions requiring 
> > da'at en lieu of the minor orphans?

And you replied:

> For example, deciding how to split up an inheritance. Making 
> deals requires da'at, the apotropos can do it. 

But that was precisely why I thought that the mechanism of hefker beis
din hefker was required.  Wasn't it the day before yesterday's daf yomi
(Gitten 40a-b)- a man owned an eved in partnership and the partner freed
the eved, making the eved a half eved, half ben chorin.  Knowing that
the beis din would force him to free the eved completely, as per the
mishna, the father transferred the ownership to his minor son.  In order
to solve the problem, the Beis Din appointed an apitropos to the minor
which enabled the freeing of the eved.  And Tosphos there discusses how
this could be done, and both according to Rabbanu Shmuel and according
to Rabbanu Tam, the mechanism is hefker beis din hefker, that either the
half eved was transferred to the apitropos  who then could free him, or
it was based on the principles found on daf 52b which allows the
apitropos to take trumos and ma'asros for the yesomim katanim so they
can eat their produce, and allows him to free an eved by the method of
selling him to somebody else who can free him - both of which are
allowed, according to Tosphos, under hefker beis din hefker.  Does
anybody disagree with Tosphos on this? 

This is in contrast to the case of a minor to whom a yevama falls, where
we have to wait until the minor is a gadol and can perform chalitza or
yibum (although that is not just a matter of not having daas as there is
a need for gadlus).

That is why I was looking for cases in between.  Ones that do not deal
with property, but also do not have a specific requirement for gadlus.
My assumption was that if there was, then we would not need to come on
to hefker beis din hefker, but I could be wrong.

By the way, even according to the man deamar 
> that higdilu yekholim lim'hot, the power of the apotropos in 
> this matter is no less than a beit din converting a minor.

Not sure what you are saying here.

> The suggestion that an apotropos should swear en lieu of the 
> orphans if indeed  he can effectuate da'at for them is not convincing,
for the 
> ability to swear depends first and foremost on being informed about
facts. The 
> apotropos comes late into the game and cannot be expected to have
anything to 
> say on the  matter.

Not necessarily.  I agree in many cases that would indeed be the
situation, and of course then he could not swear.  In the same way that
we have to deal with the fact that those who inherit their father's
property, even as gedolim, also often do not know what happened to the
property and are not in a position to swear.  But if an apitropos has
been appointed to a minor since he was a small baby, and has acted on
his behalf and dealt with the property for - say 10 years, he may well
be fully in command of all of the facts.  As I understand it, there is a
blanket prohibition on swearing by the minor or an apitropos on his
behalf, regardless of whether he is or is not fully informed of the
facts.  However, once the minor hits majority, the rules change, despite
the fact that such minor is no more informed of the facts the day after
his barmitzvah than he was the day before.


> Arie Folger
> http://www.ariefolger.googlepages.com

Regards

Chana